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United States Government Accountability Office:
GAO:
Report to Congressional Requesters:
August 2011:
Environmental Litigation:
Cases against EPA and Associated Costs over Time:
GAO-11-650:
GAO Highlights:
Highlights of GAO-11-650, a report to congressional requesters.
Why GAO Did This Study:
The Environmental Protection Agency (EPA) faces numerous legal
challenges as it implements the nation’s environmental laws. Several
statutes, such as the Clean Air and Clean Water Acts, allow citizens
to file suit against EPA to challenge certain agency actions. Where
EPA is named as a defendant, the Department of Justice provides EPA’s
legal defense. If successful, plaintiffs may be paid for certain
attorney fees and costs. Payments are made from the Department of the
Treasury’s Judgment Fund—-a permanent fund available to pay judgments
against the government, as well as settlements resulting from
lawsuits—-or EPA’s appropriations. For this review, GAO was asked to
examine (1) the trends in and factors affecting environmental
litigation for fiscal years 1995 through 2010 and (2) Justice’s recent
costs and recent plaintiff payments from the Judgment Fund and EPA.
To conduct this review, GAO obtained and analyzed data from two
Justice databases on cases filed under 10 key environmental statutes.
To gain stakeholder views on any trends and factors that might affect
them, GAO interviewed representatives of environmental and industry
groups, state attorneys general, and other experts. GAO estimated the
costs of litigation handled by Justice attorneys and payments made for
attorney fees and court costs from the Judgment Fund and EPA funds.
GAO is making no recommendations in this report. GAO provided a draft
of this report to the agencies for comment. Justice and Treasury had
technical comments, which were incorporated, while EPA had no comments.
What GAO Found:
No trend was discernible in the number of environmental cases brought
against EPA from fiscal year 1995 through fiscal year 2010, as the
number of cases filed in federal court varied over time. Justice staff
defended EPA on an average of about 155 such cases each year, or a
total of about 2,500 cases between fiscal years 1995 and 2010. Most
cases were filed under the Clean Air Act (59 percent of cases) and the
Clean Water Act (20 percent of cases). According to stakeholders GAO
interviewed, a number of factors-—particularly a change in
presidential administration, new regulations or amendments to laws, or
EPA’s not meeting statutorily required deadlines—-affect environmental
litigation.
Figure: Environmental Litigation Cases Filed against EPA, Fiscal Year
1995 through Fiscal Year 2010:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 1995;
Number of cases: 167.
Fiscal year: 1996;
Number of cases: 132.
Fiscal year: 1997;
Number of cases: 216.
Fiscal year: 1998;
Number of cases: 128.
Fiscal year: 1999;
Number of cases: 190.
Fiscal year: 2000;
Number of cases: 175.
Fiscal year: 2001;
Number of cases: 180.
Fiscal year: 2002;
Number of cases: 140.
Fiscal year: 2003;
Number of cases: 154.
Fiscal year: 2004;
Number of cases: 167.
Fiscal year: 2005;
Number of cases: 153.
Fiscal year: 2006;
Number of cases: 137.
Fiscal year: 2007;
Number of cases: 125.
Fiscal year: 2008;
Number of cases: 102;
Fiscal year: 2009;
Number of cases: 115;
Fiscal year: 2010;
Number of cases: 201;
Source: GAO analysis of Justice data.
[End of figure]
The costs borne by Justice, EPA, and Treasury also varied without a
discernible trend from fiscal year 1998 through fiscal year 2010.
Justice spent at least $43 million, or $3.3 million annually, to
defend EPA in court during this time. In addition, owing to statutory
requirements to pay certain successful plaintiffs for attorney fees
and costs, Treasury paid about $14.2 million from fiscal year 2003
through fiscal year 2010-—about $1.8 million per fiscal year-—to
plaintiffs in environmental cases. EPA paid approximately $1.4 million
from fiscal year 2006 through fiscal year 2010—about $280,000 per
fiscal year—to plaintiffs for environmental litigation claims under
relevant statutes. (All amounts are given in constant 2010 dollars.)
Justice officials said that they negotiate payments with the
successful plaintiffs, who generally receive less than originally
requested. Complicating efforts to analyze trends in cases and costs
is that Justice maintains data on environmental cases in two separate
data systems and does not have a standard approach for maintaining the
data. As a result, it is difficult to identify and summarize the full
set of cases and costs managed by Justice. Nonetheless, using an
iterative electronic and manual process, GAO was able to merge the two
sets of data for its purposes. Justice officials said that they do not
need to change their approach to managing the data, however, because
they do not use it to summarize case data agencywide. Moreover, the
officials said they lack resources to adapt their aging systems to
accept additional data.
To view the full product, including the scope and methodology, click
on [hyperlink, http://www.gao.gov/products/GAO-11-650]. For more
information, contact David C. Trimble at (202) 512-3841 or
trimbled@gao.gov.
[End of section]
Contents:
Letter:
Background:
The Number of Environmental Litigation Cases against EPA Showed No
Discernible Trend over 16 Years, and Stakeholders Stated That Various
Factors Affected Yearly Numbers:
Available Data Indicate That Costs Associated with Environmental
Litigation against EPA, including Payments to Plaintiffs, Have Varied
over the Past 10 Years with No Discernible Trend:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Key Provisions and Historical Reporting under the Equal
Access to Justice Act:
Appendix III: Department of the Treasury and Environmental Protection
Agency Payments:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Selected Environmental Laws:
Table 2: Share of Cases by Lead Plaintiff Type: Fiscal Year 1995
through Fiscal Year 2010:
Table 3: Categories of Plaintiffs:
Table 4: Stakeholders We Interviewed:
Table 5: Key Attributes of Attorney Fee Payment Provisions Relevant to
Judicial Proceedings:
Table 6: Treasury's Judgment Fund Payments, Fiscal Year 2003 through
Fiscal Year 2010:
Table 7: EPA's Equal Access to Justice Act Payments, Fiscal Year 2006
through Fiscal Year 2010:
Figures:
Figure 1: Environmental Cases Filed against EPA, Fiscal Year 1995
through Fiscal Year 2010:
Figure 2: Environmental Cases Filed against EPA by Statute, Fiscal
Year 1995 through Fiscal Year 2010:
Figure 3: Estimated Environment and Natural Resources Division
Attorney Costs for EPA Defensive Cases, Fiscal Year 1998 through
Fiscal Year 2010:
Figure 4: Treasury's Judgment Fund Payments, Fiscal Year 2003 through
Fiscal Year 2010:
Figure 5: Amount Paid by EPA under EAJA for Environmental Cases,
Fiscal Year 2006 through Fiscal Year 2010:
Abbreviations:
EAJA: Equal Access to Justice Act:
EPA: Environmental Protection Agency:
NEPA: National Environmental Policy Act:
PACER: Public Access to Court Electronic Records:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
August 1, 2011:
The Honorable James M. Inhofe:
Ranking Member:
Committee on Environment and Public Works:
United States Senate:
The Honorable David Vitter:
United States Senate:
As the primary federal agency charged with implementing many of the
nation's environmental laws, the Environmental Protection Agency (EPA)
often faces the prospect of litigation over its regulations and other
actions. For example, several environmental statutes have provisions
that allow citizens--including individuals, states, companies, and
associations--to file suit against EPA challenging certain agency
actions, such as making regulations or permitting decisions. Where EPA
is named as the defendant in lawsuits, the Department of Justice,
which is generally responsible for defending federal agencies in
court, provides EPA's legal defense, and EPA provides technical
expertise. Within Justice, the Environment and Natural Resources
Division handles most of the defense work on EPA environmental
litigation cases from its Washington, D.C., office, but some of the 94
U.S. Attorneys' Offices, particularly those in the New York City area,
also handle a small number of cases and may work on some cases managed
by the Environment and Natural Resources Division.
Statutes establishing programs administered by EPA, and under which
the agency may be sued, include many of the nation's most prominent
environmental laws, such as the Clean Air Act; Clean Water Act;
Comprehensive Environmental Response, Compensation, and Liability Act
(better known as the Superfund law); Emergency Planning and Community
Right-to-Know Act; Federal Insecticide, Fungicide, and Rodenticide Act
and related provisions of the Federal Food, Drug, and Cosmetic Act;
Resource Conservation and Recovery Act; Safe Drinking Water Act; and
Toxic Substances Control Act[Footnote 1]. In addition, EPA may be sued
to challenge the agency's compliance with section 7 of the Endangered
Species Act, which requires every federal agency, including EPA, to
consult with the federal agencies responsible for species management
if it is proposing an action--including a major construction project
or a regulation or permit--that may affect species protected under the
act or habitat designated as critical to the species' survival.
In general, plaintiffs and defendants in lawsuits bear their own
litigation costs, although some statutes authorize judges to award
attorney fees to a successful, or prevailing, plaintiff. The same
holds true in cases involving the federal government: if plaintiffs
win a lawsuit against a federal agency, they cannot be awarded
attorney fees and court expenses unless authorized by law. Both
Justice and EPA incur costs in association with litigation, as does
the plaintiff. The types of costs include attorney fees and expenses
and court costs. Attorney fees include costs for attorney
representation, which is typically charged according to time spent on
a case. Other attorney expenses may include costs for expert
witnesses, telephone, postage, travel, copying, and computer research
expenses. Court costs include fees charged by courts, such as filing
fees and reporting fees. In addition, EPA and the plaintiff typically
incur costs stemming from time spent on a case, such as meeting with
attorneys, negotiations, preparation for trial, and other activities.
Payment for authorized attorney fees and costs generally comes from
the Department of the Treasury's Judgment Fund, which is a permanent,
indefinite appropriation available to pay many judgments against, and
settlements by, the United States, or from an agency's appropriated
funds.[Footnote 2]
Currently, no aggregated data on such environmental litigation or
associated costs are reported by federal agencies. The key agencies
involved--Justice, EPA, and the Treasury--maintain certain data on
individual cases in several internal agency databases, but
collectively, these data do not capture all costs. Each of Justice's
litigation components maintains a separate case management system that
gathers information related to individual cases, and we have
previously reported that the department's decentralized data
management systems make it difficult and costly to gather data across
divisions.[Footnote 3] Both Justice and EPA record some case-related
payments, including certain data on attorney fees and court costs
associated with cases, although neither agency currently reports these
data publicly.[Footnote 4] In addition, Treasury records data on
payments made from its Judgment Fund but does not publish them.
In this context, you asked us to review environmental litigation data.
Our objectives were to examine (1) trends, if any, in environmental
lawsuits against EPA from fiscal year 1995 through fiscal year 2010,
as well as stakeholders' views of factors affecting any trends, and
(2) Justice's recent costs for representing EPA in defensive
environmental lawsuits and the federal government's recent payments to
plaintiffs.
To conduct our work, we obtained and analyzed historical data from two
components within Justice--Justice's Environment and Natural Resources
Division, which defends EPA in most environmental litigation cases,
and the Executive Office for U.S. Attorneys, which manages data for
the 94 U.S. Attorneys' Offices. We gathered data from the Environment
and Natural Resources Division's Case Management System database that
tracks basic information on cases, including lead plaintiffs' names,
filing and disposition dates, and relevant statutes. We also collected
data from the Executive Office for U.S. Attorneys' Legal Information
Office Network System, a database that contains similar--but not
exactly the same--information for cases handled in part or in entirety
by the 94 U.S. Attorneys' Offices. At the start of our engagement,
Justice officials informed us that their databases were designed for
management purposes rather than trend analysis. Nevertheless, since
these databases were the best available sources of information on
cases against EPA, we worked with Justice's Environment and Natural
Resources Division and the Executive Office for U.S. Attorneys to use
the data. From both databases, we examined data on lawsuits filed in
federal court from October 1, 1994, through September 30, 2010 (i.e.,
fiscal year 1995 through fiscal year 2010) that were identified as
brought under 10 environmental statutes and led by EPA. We excluded
cases involving the Freedom of Information Act and contract,
employment, or other generally applicable laws under which EPA may
also have been sued. We also excluded cases filed under the National
Environmental Policy Act (NEPA), which applies to major federal
actions significantly affecting the environment, because, according to
Justice, few NEPA cases are filed against EPA, and such cases are
generally handled by the U.S. Attorneys' Offices and other sections of
the Environment and Natural Resources Division, such that
significantly more time would be required to include them.
To get their views on any environmental litigation trends and the
factors that underlie them, we interviewed a nonprobability sample of
the following stakeholders: officials from EPA and Justice;
representatives of six environmental groups, six industry
associations, and the National Association of Attorneys General;
representatives of six state attorneys general or state environmental
offices; and a university law professor who is expert in data on
citizen suits. The findings from our interviews with stakeholders
cannot be generalized to those to whom we did not speak.
We estimated the costs of environmental litigation on the basis of the
following three factors: (1) Justice attorneys' labor for fiscal year
1998 through fiscal year 2010, (2) payments made by Treasury from the
Judgment Fund for plaintiffs' attorney fees and court costs from
fiscal year 2003 through fiscal year 2010, and (3) payments made from
EPA appropriations from fiscal year 2006 through fiscal year 2010 (the
years for which relevant payment data were available). Because EPA
does not track its attorneys' time by case, we were not able to
include data on EPA attorney costs spent on environmental litigation
cases. In addition, the government may also incur other costs
associated with litigation, including the costs of revising
regulations in response to lawsuits, EPA overhead costs, and costs
associated with delays in EPA permitting, but we did not have reliable
data to quantify these costs.
For both Justice databases, we assessed the data and found them to be
sufficiently complete and accurate for the purposes of this report.
When certain case information was found missing or incorrect in some
of the data fields, we did additional research on these cases using
the federal courts' electronic records database and corrected the
data. Inconsistent formatting of key data elements produced
significant problems for completing our analysis and required
significant manual review by GAO and Justice.
We conducted this performance audit from June 2010 through July 2011,
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
Background:
To carry out its responsibilities under the nation's environmental
laws, EPA conducts an array of activities, such as promulgating
regulations; issuing and denying permits; approving state programs;
and issuing enforcement orders, plans, and other documents. Many of
these activities may be subject to legal challenge.[Footnote 5]
Environmental Statutes and Lawsuits against the Federal Government:
Generally, the federal government has immunity from lawsuits, but
federal laws authorize three types of suits related to EPA's
implementation of environmental laws.[Footnote 6] First, most of the
major environmental statutes include "citizen suit" provisions
authorizing citizens--including individuals, associations, businesses,
and state and local governments--to sue EPA when the agency fails to
perform an action mandated by law. These suits are often referred to
as "agency-forcing" or "deadline" suits. Second, the major
environmental statutes typically include judicial review provisions
authorizing citizens to challenge certain EPA actions, such as
promulgating regulations or issuing permits. Third, the Administrative
Procedure Act[Footnote 7] authorizes challenges to certain agency
actions that are considered final actions, such as rulemakings and
decisions on permit applications. As a result, even if a particular
environmental statute does not authorize a challenge against EPA for a
final decision or regulation, the Administrative Procedure Act may do
so. Table 1 lists key environmental laws under which EPA takes
actions--or that govern EPA actions--that may be subject to challenge
in court.[Footnote 8]
Table 1: Selected Environmental Laws:
Statute: Safe Drinking Water Act;
General topic: Public drinking water systems;
Examples of EPA actions subject to legal challenge:
Promulgation of national primary drinking water regulations;
Approval of state programs;
Administrative enforcement actions.
Statute: Clean Water Act;
General topic: Water pollution, dredging, and filling of waters;
Examples of EPA actions subject to legal challenge:
Promulgation of regulations;
Issuance and denial of permits;
Approval of state programs and certain actions by state agencies;
Administrative enforcement actions.
Statute: Clean Air Act;
General topic: Emission of pollutants into air;
Examples of EPA actions subject to legal challenge:
Promulgation of national ambient air quality standards;
Promulgation of air quality regulations;
Issuance and denial of permits;
Approval of state programs and state implementation plans;
Administrative enforcement actions.
Statute: Resource Conservation and Recovery Act;
General topic: Solid and hazardous waste storage, handling, treatment,
and disposal;
Examples of EPA actions subject to legal challenge:
Promulgation of regulations;
Issuance and denial of permits;
Approval of state programs;
Administrative enforcement actions.
Statute: Comprehensive Environmental Response, Compensation, and
Liability Act;
General topic: Releases of hazardous substances and their cleanup;
Examples of EPA actions subject to legal challenge:
Cleanup remedies (after implementation);
Promulgation of regulations.
Statute: Toxic Substances Control Act;
General topic: Toxic substances used in commerce;
Examples of EPA actions subject to legal challenge:
Promulgation of regulations;
Approval and denial of chemical registrations;
Administrative enforcement actions.
Statute: Emergency Planning and Community Right-to-Know Act;
General topic: Reporting releases of toxic chemicals;
Examples of EPA actions subject to legal challenge:
Promulgation of regulations;
Administrative enforcement actions.
Statute: Federal Insecticide, Fungicide, and Rodenticide Act;
General topic: Pesticides;
Examples of EPA actions subject to legal challenge:
Promulgation of regulations;
Approval and denial of pesticide applications.
Statute: Federal Food, Drug, and Cosmetic Act;
General topic: Pesticides used on food;
Examples of EPA actions subject to legal challenge:
Establishment of pesticide tolerances.
Statute: Endangered Species Act;
General topic: Agency actions affecting threatened and endangered
species;
Examples of EPA actions subject to legal challenge:
Any actions taken under a substantive law may trigger action under the
Endangered Species Act.
Source: GAO.
[End of table]
Supporters of provisions allowing legal challenges to actions of the
federal government assert that they provide a check on the authority
of federal agencies as they carry out--or fail to carry out--their
duties. For example, in passing the 1977 Clean Air Act amendments, a
key sponsor indicated that authorizing citizens to sue agencies to
compel them to carry out their duties is integral to a democratic
society.[Footnote 9] According to others, citizen suits against
government agencies have achieved benefits, such as ensuring the
implementation of congressional directives or accelerating regulatory
programs.[Footnote 10] Similarly, the Administrative Procedure Act
arose out of the expansion of the federal government in the New Deal,
with concerns about agencies' adjudicative powers, their exercise of
delegated legislative power by rulemakings, and the scope of review of
agency administrative action by courts.
A lawsuit challenging EPA's failure to act may begin when the
aggrieved party sends EPA a notice of intent to sue, if required,
while a lawsuit challenging a final EPA action begins when a complaint
is filed in court.[Footnote 11] Before EPA takes final action, the
public or affected parties generally have opportunities to provide
comments and information to the agency. In addition, administrative
appeals procedures are available--and in many cases required[Footnote
12]--to challenge EPA's final action without filing a lawsuit in a
court.[Footnote 13] For example, citizens can appeal an EPA air
emission permit to the agency's Environmental Appeals Board. These
administrative processes provide aggrieved parties with a forum that
may be faster and less costly than a court.
If a party decides to pursue a case, the litigation process generally
involves filing of a complaint, formal initiation of the litigation;
motions to the court before trial, such as asking for dismissal of the
case; and hearings and court decisions. Throughout this process, the
parties to the litigation can decide to reach a settlement.
Negotiations between the aggrieved party and EPA may occur anytime
after the agency action, at any point during active litigation, and
even after judgment. A common remedy sought in litigation against EPA
under the statutes listed in table 1 is for the court to set aside an
EPA regulation or permit decision and to require EPA to reconsider
that regulation or permit decision.
The Equal Access to Justice Act:
In the United States, parties involved in litigation generally pay
their own attorney fees and costs, except in instances in which
Congress has provided exceptions for policy reasons, such as to
encourage citizens to bring suits to enforce the law. In these
instances, as well as some common-law exceptions, a prevailing
plaintiff may seek award of its attorney fees and court costs from the
losing party. Many of the environmental statutes in table 1 contain
such exceptions authorizing courts to award fees, which, according to
Justice, include awards against the federal government.[Footnote 14]
In 1980, Congress enacted the Equal Access to Justice Act (EAJA)
authorizing the award of attorney fees and costs to parties that
prevail in certain lawsuits against the federal government; the
payments are made from Treasury's Judgment Fund and agency
appropriations. While the federal government was already subject to
some of these exceptions in environmental statutes, before EAJA was
enacted, the federal government in many other cases was not subject to
these exceptions and therefore was not authorized to make payments to
prevailing parties. As the 1980 conference committee report for EAJA
explains, the act's premise is that individuals, corporations,
partnerships, and labor and other organizations do not seek review of
or defend against unreasonable government actions because of the
expense involved, as well as a disparity in expertise and resources
between the government and the individual or organization involved.
[Footnote 15] For those cases brought under statutes that do not make
the federal government subject to pay fees and costs, EAJA thus allows
payment of the attorney fees and other costs if the organizations
sought review of a government action and prevailed. [Footnote 16] (See
appendix II for a detailed description of the act.)
Except as otherwise specifically provided by law, EAJA authorizes the
award of the following costs to be paid from Treasury's Judgment Fund
or an agency's appropriations, as indicated:
* Court costs of prevailing parties against the United States in any
civil action. These costs may include fees for the clerk and marshal,
reporter, printing, witnesses, copies, docket fees, and interpreters
and court-appointed experts and may include an amount equal to the
filing fees. Payment of costs made under this section generally are
paid by Treasury's Judgment Fund.
* Reasonable attorney fees and expenses of a prevailing party to the
same extent as any other party where a statutory or common-law
exception provides for award of fees to a prevailing party.[Footnote
17] Regarding the environmental statutes in table 1, according to
Justice, many of the relevant provisions under which EPA may be sued
provide for award of such fees against EPA, independent of EAJA.
Nevertheless, EAJA makes EPA subject to fee awards under all the
environmental statutes' provisions authorizing courts to award
attorney fees and expenses. Therefore, in many--but not all--of the
environmental lawsuits against EPA, a court may award attorney fees
and expenses of a prevailing party against the agency, independently
or as a result of EAJA section 2412(b).[Footnote 18] Payment of awards
made under this section generally are paid by Treasury's Judgment Fund.
* Attorney fees and expenses of a prevailing party in most other
cases--that is, when the relevant statute does not authorize courts to
award attorney fees and expenses, and no common-law exception applies--
unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award
unjust.[Footnote 19] Two laws listed in table 1--the Federal
Insecticide, Fungicide, and Rodenticide Act and the Federal Food,
Drug, and Cosmetic Act--as well as some individual provisions of other
statutes, do not authorize payment of fees to prevailing parties. As a
result, in cases brought against EPA under these statutes and
provisions, courts award payment of fees under EAJA section 2412(d).
[Footnote 20] Payment of awards made under this section is generally
made from agency appropriations.
In addition, to settle a case, the government may agree to pay a
plaintiff court costs and attorney fees and expenses. Payments made in
connection with settlements are paid in the same manner as a court
award for the case.
Some in Congress have expressed concerns that the use of taxpayer
funds to make EAJA payments depletes limited funding; these
individuals have called for transparency of these expenditures.
Originally, EAJA provided for governmentwide reporting on its use and
cost. For judicial proceedings, EAJA required the Director of the
Administrative Office of the U. S. Courts to report annually to
Congress on EAJA court activity, including the number, nature, and
amounts of awards; claims involved; and any other relevant information
deemed necessary to aid Congress in evaluating the scope and effect of
awards under the act. The responsibility for this reporting was
transferred to the Attorney General in 1992. In addition, EAJA
required the Chairman of the Administrative Conference of the United
States to submit an EAJA report annually to Congress on
administratively awarded fees and expenses. Then, in December 1995,
the Federal Reports Elimination and Sunset Act of 1995 repealed the
Attorney General's reporting requirement for fees and expenses awarded
under EAJA and also discontinued reporting of governmentwide
administrative awards of fees and costs under EAJA after fiscal year
1994.[Footnote 21]
We have previously reported certain governmentwide EAJA data, as well
as data focused on selected agencies. In 1995, we reported data on the
number of cases and amounts of awarded plaintiff attorney fees
exceeding $10,000 against nine federal agencies for cases closed
during fiscal years 1993 and 1994.[Footnote 22] In 1998, we provided
information on the history of EAJA, the extent to which one provision
of the act was used governmentwide from 1982 to 1994, and the
provision's use by the Department of Labor and other agencies.
[Footnote 23] The governmentwide data for fiscal year 1994 showed,
among other things, that the Departments of Health and Human Services
and of Veterans Affairs accounted for most EAJA payments in court
proceedings, under the provision that applies when the substantive
law does not authorize award of attorney fees and costs.[Footnote 24]
The Number of Environmental Litigation Cases against EPA Showed No
Discernible Trend over 16 Years, and Stakeholders Stated That Various
Factors Affected Yearly Numbers:
The number of environmental litigation cases brought against EPA each
year from fiscal year 1995 through fiscal year 2010 varied but showed
no discernible trend. According to the stakeholders we interviewed, a
number of factors--particularly presidential administration, the
passage of new regulations or amendments to laws, or EPA's failure to
meet statutory deadlines--affect the number of environmental
litigation cases each year and the type of plaintiffs who bring them.
No Trend Was Discernible in the Number of Cases Brought against EPA
from Fiscal Year 1995 through Fiscal Year 2010:
The number of environmental litigation cases brought against EPA each
year from fiscal year 1995 through fiscal year 2010 varied but did not
change systematically over time. The average number of new cases filed
each year was 155, ranging from a low of 102 new cases filed in fiscal
year 2008 to a high of 216 cases filed in fiscal year 1997 (see figure
1). From fiscal year 1995 through fiscal year 2001, the average number
of new cases was 170; from fiscal year 2002 through fiscal year 2010,
the average number of new cases was 144, a difference of 26 fewer new
cases on average. The average number of new cases in these periods
varied from the long-term average of 155 cases by less than 10
percent. In all, Justice defended EPA in nearly 2,500 cases from
fiscal year 1995 through fiscal year 2010.
Figure 1: Environmental Cases Filed against EPA, Fiscal Year 1995
through Fiscal Year 2010:
[Refer to PDF for image: stacked vertical bar graph]
Number of cases:
Fiscal year: 1995;
Trade associations: 47;
Private companies: 65;
National environmental group: 10;
Local environmental and citizens' groups: 17;
Individuals: 12;
State, municipal, and regional governments: 10;
Tribes, universities, unions, and workers' groups: 3;
Other: 3;
Unknown: 0.
Fiscal year: 1996;
Trade associations: 31;
Private companies: 36;
National environmental group: 10;
Local environmental and citizens' groups: 24;
Individuals: 11;
State, municipal, and regional governments: 14;
Tribes, universities, unions, and workers' groups: 3;
Other: 3;
Unknown: 0.
Fiscal year: 1997;
Trade associations: 103;
Private companies: 47;
National environmental group: 8;
Local environmental and citizens' groups: 17;
Individuals: 21;
State, municipal, and regional governments: 15;
Tribes, universities, unions, and workers' groups: 4;
Other: 0;
Unknown: 1.
Fiscal year: 1998;
Trade associations: 29;
Private companies: 38;
National environmental group: 17;
Local environmental and citizens' groups: 16;
Individuals: 17;
State, municipal, and regional governments: 10;
Tribes, universities, unions, and workers' groups: 0;
Other: 0;
Unknown: 1.
Fiscal year: 1999;
Trade associations: 54;
Private companies: 54;
National environmental group: 13;
Local environmental and citizens' groups: 20;
Individuals: 9;
State, municipal, and regional governments: 31;
Tribes, universities, unions, and workers' groups: 4;
Other: 2;
Unknown: 3.
Fiscal year: 2000;
Trade associations: 39;
Private companies: 58;
National environmental group: 14;
Local environmental and citizens' groups: 19;
Individuals: 16;
State, municipal, and regional governments: 16;
Tribes, universities, unions, and workers' groups: 5;
Other: 8;
Unknown: 0.
Fiscal year: 2001;
Trade associations: 39;
Private companies: 44;
National environmental group: 26;
Local environmental and citizens' groups: 21;
Individuals: 29;
State, municipal, and regional governments: 18;
Tribes, universities, unions, and workers' groups: 0;
Other: 3;
Unknown: 0.
Fiscal year: 2002;
Trade associations: 27;
Private companies: 23;
National environmental group: 24;
Local environmental and citizens' groups: 31;
Individuals: 14;
State, municipal, and regional governments: 17;
Tribes, universities, unions, and workers' groups: 3;
Other: 1;
Unknown: 0.
Fiscal year: 2003;
Trade associations: 39;
Private companies: 17;
National environmental group: 26;
Local environmental and citizens' groups: 35;
Individuals: 12;
State, municipal, and regional governments: 22;
Tribes, universities, unions, and workers' groups: 2;
Other: 0;
Unknown: 1.
Fiscal year: 2004;
Trade associations: 21;
Private companies: 31;
National environmental group: 25;
Local environmental and citizens' groups: 40;
Individuals: 11;
State, municipal, and regional governments: 27;
Tribes, universities, unions, and workers' groups: 8;
Other: 3;
Unknown: 1.
Fiscal year: 2005;
Trade associations: 23;
Private companies: 34;
National environmental group: 22;
Local environmental and citizens' groups: 29;
Individuals: 8;
State, municipal, and regional governments: 34;
Tribes, universities, unions, and workers' groups: 2;
Other: 1;
Unknown: 0.
Fiscal year: 2006;
Trade associations: 19;
Private companies: 28;
National environmental group: 37;
Local environmental and citizens' groups: 25;
Individuals: 5;
State, municipal, and regional governments: 19;
Tribes, universities, unions, and workers' groups: 2;
Other: 2;
Unknown: 0.
Fiscal year: 2007;
Trade associations: 33;
Private companies: 21;
National environmental group: 23;
Local environmental and citizens' groups: 28;
Individuals: 4;
State, municipal, and regional governments: 13;
Tribes, universities, unions, and workers' groups: 3;
Other: 0;
Unknown: 0.
Fiscal year: 2008;
Trade associations: 13;
Private companies: 20;
National environmental group: 24;
Local environmental and citizens' groups: 18;
Individuals: 3;
State, municipal, and regional governments: 21;
Tribes, universities, unions, and workers' groups: 3;
Other: 0;
Unknown: 0.
Fiscal year: 2009;
Trade associations: 21;
Private companies: 14;
National environmental group: 30;
Local environmental and citizens' groups: 27;
Individuals: 8;
State, municipal, and regional governments: 13;
Tribes, universities, unions, and workers' groups: 1;
Other: 1;
Unknown: 0.
Fiscal year: 2010;
Trade associations: 84;
Private companies: 36;
National environmental group: 29;
Local environmental and citizens' groups: 21;
Individuals: 5;
State, municipal, and regional governments: 17;
Tribes, universities, unions, and workers' groups: 3;
Other: 6;
Unknown: 0.
Source: GAO analysis of Justice data.
[End of figure]
The greatest number of cases was filed in fiscal year 1997, which,
according to a Justice official, may be explained by the fact that EPA
revised its national ambient air quality standards for ozone and
particulate matter in 1997, which may have caused some groups to sue.
In addition, according to the same official, in 1997 EPA implemented a
"credible evidence" rule, which also was the subject of additional
lawsuits.[Footnote 25] The fewest cases against EPA (102) were filed
in fiscal year 2008, and Justice officials were unable to pinpoint any
specific reasons for the decline. In fiscal years 2009 and 2010, the
caseload increased. A Justice official said that it is difficult to
know why the number of cases might increase because litigants sue for
different reasons, and some time might elapse between an EPA action
and a group's decision to sue.
As shown in figure 2, most cases against EPA were brought under the
Clean Air Act, which represented about 59 percent of the approximately
2,500 cases that were filed during the 16-year period of our review.
Cases filed under the Clean Water Act represented the next largest
group of cases (20 percent), and the Resource Conservation and
Recovery Act represented the third largest group of cases (6 percent).
Figure 2: Environmental Cases Filed against EPA by Statute, Fiscal
Year 1995 through Fiscal Year 2010:
[Refer to PDF for image: horizontal bar graph]
Statute: Federal Food, Drug, and Cosmetics Act;
Total cases: 17.
Statute: Emergency Preparedness and Community Right to Know Act;
Total cases: 26.
Statute: Endangered Species Act;
Total cases: 30.
Statute: Toxic Substances Control Act;
Total cases: 40.
Statute: Federal Insecticide, Fungicide, and Rodenticide Act;
Total cases: 48.
Statute: Safe Drinking Water Act;
Total cases: 73.
Statute: Comprehensive Environmental Response,|Compensation, and
Liability Act (Superfund);
Total cases: 131.
Statute: Resource Conservation and Recovery Act;
Total cases: 151.
Statute: Clean Water Act;
Total cases: 500.
Statute: Clear Act;
Total cases: 1,457.
Source: GAO analysis of data from Justice’s Environment and Natural
Resources Division.
Note: Nine cases did not have information on statute.
[End of figure]
The lead plaintiffs filing cases against EPA during the 16-year period
fit into several categories. The largest category comprised trade
associations (25 percent), followed by private companies (23 percent),
local environmental groups and citizens' groups (16 percent), and
national environmental groups (14 percent). Individuals, states and
territories, municipal and regional government entities, unions and
workers' groups, tribes, universities, and a small number of others we
could not identify made up the remaining plaintiffs (see table 2).
Appendix I gives more information about our method of developing these
categories and classifying cases.
Table 2: Share of Cases by Lead Plaintiff Type: Fiscal Year 1995
through Fiscal Year 2010:
Type of group[A]: Trade associations;
Number of cases: 622;
Percentage: 25%.
Type of group[A]: Private companies;
Number of cases: 566;
Percentage: 23%.
Type of group[A]: Local environmental and citizens' groups;
Number of cases: 388;
Percentage: 16%.
Type of group[A]: National environmental groups;
Number of cases: 338;
Percentage: 14%.
Type of group[A]: States, territories, municipalities, and regional
government entities;
Number of cases: 297;
Percentage: 12%.
Type of group[A]: Individuals;
Number of cases: 185;
Percentage: 7%.
Type of group[A]: Unions, workers' groups, universities, and tribes;
Number of cases: 46;
Percentage: 2%.
Type of group[A]: Other;
Number of cases: 33;
Percentage: 1%.
Type of group[A]: Unknown;
Number of cases: 7;
Percentage: 1%[B].
Type of group[A]: Total;
Number of cases: 2,482;
Percentage: 100%.
Source: GAO.
[A] For more information on each of these groups, see appendix I.
[B] Less than 1 percent.
[End of table]
Stakeholders Stated That Various Factors Influence Environmental
Litigation:
According to the stakeholders we interviewed, a number of factors--
particularly a change in presidential administration, the passage of
regulations or amendments to laws, and EPA's failure to meet statutory
deadlines--affect plaintiffs' decisions to bring litigation against
EPA. Stakeholders did not identify any single factor driving
litigation, but instead, attributed litigation to a combination of
different factors.
According to most of the stakeholders we spoke with, a presidential
administration is an important factor in groups' decisions to bring
suits against EPA. Some stakeholders suggested that a new
administration viewed as favoring less enforcement could spur lawsuits
from environmental groups in response, or industry groups could sue to
delay or prevent the administration's actions. For example, a
presidential administration that seems to favor less enforcement of
requirements under environmental statutes could motivate increased
litigation. Other stakeholders suggested that if an administration is
viewed as favoring greater enforcement of rules, industry may respond
to increased activity by bringing suit against EPA to delay or prevent
the administration's actions, while certain environmental groups may
bring suit with the aim of ensuring that required agency actions are
completed during an administration they perceive as having views
similar to the groups' own.
Most of the stakeholders also suggested that the development of new
EPA regulations or the passage of amendments to environmental statutes
may lead parties to file suit against the new regulations or against
EPA's implementation of the amendments. When EPA issues new or amended
regulations, parties may take issue with the specific new provisions.
One stakeholder noted that an industry interested in a particular
issue may become involved in litigation related to the development of
regulations because it wishes to be part of the regulatory process and
negotiations that result in a mutually acceptable rule. In addition,
several of the stakeholders noted that if EPA does not meet its
statutory deadlines, organizations or individuals might sue to enforce
the deadline. In such suits, interested parties seek a court order or
a settlement requiring EPA to implement its statutory responsibilities.
In addition, some stakeholders said that some statutes are broadly
written or contain vague language or definitions; such statutes are
more likely to be litigated because different parties want to define
the terms and set precedent for future cases. For example, a
stakeholder representing states' perspectives said that under the
Clean Water Act, an area of frequent litigation is the definition of
"navigable waters." Through lawsuits, litigants have argued about
whether a certain body of water comes within the definition and can
therefore be regulated under the act.
A few stakeholders identified two other factors that may affect
litigation: (1) the maturity of the statute in question and (2) the
use of existing laws to address new problems. The stakeholders said
that the focus of litigation over a particular statute changes with
time, as early cases may set precedents that will affect how the
statute is implemented later. Also, a representative of an
environmental organization said that because no major rewriting of any
environmental statutes has occurred in 20 years, plaintiffs are
increasingly bringing suits, and judges are making decisions, about
how to interpret statutes in situations for which rules were not
explicitly written. For example, parties disagree over whether the
Clean Air Act should be used to regulate greenhouse gases, such as
carbon dioxide, methane, and nitrous oxide--substances that some
stakeholders say the act was not originally designed to regulate.
Available Data Indicate That Costs Associated with Environmental
Litigation against EPA, including Payments to Plaintiffs, Have Varied
over the Past 10 Years with No Discernible Trend:
Data available from Justice, Treasury, and EPA show that the costs
associated with environmental litigation cases against EPA have varied
from year to year with no discernible trend. Justice's Environment and
Natural Resources Division spent a total of about $43 million to
defend EPA in these cases from fiscal year 1998 to fiscal year 2010,
averaging $3.3 million per year.[Footnote 26] Some cost data from the
Department of Justice are not available, however, in part because
Justice's Environment and Natural Resources Division and the U.S.
Attorneys' Offices do not have a standard approach for maintaining key
data for environmental litigation cases. For example, while the
Environment and Natural Resources Division tracks attorney hours by
case, the U.S. Attorneys' Offices do not. Treasury paid a total of
about $14.2 million to prevailing plaintiffs for attorney fees and
costs related to these cases from fiscal years 2003 through 2010,
averaging about $1.8 million per year. EPA paid a total of $1.4
million from fiscal year 2006 through fiscal year 2010 in attorney
fees and costs, averaging about $280,000 per year.
On Average, Justice Spent at Least $3.3 Million a Year Defending EPA
against Environmental Litigation in Fiscal Year 1998 through Fiscal
Year 2010:
Our analysis of data from Justice's Environment and Natural Resources
Division found that from fiscal year 1998 through fiscal year 2010,
Justice spent at least $3.3 million on average annually to defend EPA
against environmental litigation, for a total of $43 million.[Footnote
27] (The Environment and Natural Resources Division fiscal year 2010
budget was $110 million.) The U.S. Attorneys' Offices' database,
however, does not contain information on attorney hours worked by
case, which meant that we could not include the time these attorneys
spent on each case in our estimate. According to Justice officials,
however, the $3.3 million average per year represents the majority of
Justice's time spent defending EPA each year, given that the U.S.
Attorneys' Offices handle a small number of environment-related cases
each year.[Footnote 28] Overall, as shown in figure 3, annual costs
increased by an average of about 3 percent each year from fiscal year
1998 through 2010, ranging from a low of $2.7 million in fiscal year
1998 to a high of $3.9 million in fiscal year 2007.
Figure 3: Estimated Environment and Natural Resources Division
Attorney Costs for EPA Defensive Cases, Fiscal Year 1998 through
Fiscal Year 2010:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 1998;
Attorney Costs: $2,714,000.
Fiscal year: 1999;
Attorney Costs: $2,888,000.
Fiscal year: 2000;
Attorney Costs: $3,048,000.
Fiscal year: 2001;
Attorney Costs: $3,505,000.
Fiscal year: 2002;
Attorney Costs: $3,267,000.
Fiscal year: 2003;
Attorney Costs: $3,567,000.
Fiscal year: 2004;
Attorney Costs: $3,199,000.
Fiscal year: 2005;
Attorney Costs: $3,002,000.
Fiscal year: 2006;
Attorney Costs: $3,491,000.
Fiscal year: 2007;
Attorney Costs: $3,922,000.
Fiscal year: 2008;
Attorney Costs: $3,572,000.
Fiscal year: 2009;
Attorney Costs: $3,049,000.
Fiscal year: 2010;
Attorney Costs: $3,567,000.
Source: GAO analysis of data from Justice’s Environment and Natural
Resources Division.
Note: All amounts are given in constant 2010 dollars.
[End of figure]
The Department of Justice Does Not Have a Standard Approach for
Maintaining Key Data on Environmental Litigation Cases:
Justice maintains separate, decentralized databases containing
environmental case information and does not have a standard approach
for collecting and entering data on these cases. Without a standard
approach, it is it difficult to identify and summarize the full set of
environmental litigation cases and costs managed by the department
agencywide. Specifically, the department's Environment and Natural
Resources Division and the U.S. Attorneys' Offices maintain different
case management systems, and these systems do not use the same unique
number to identify cases, making it possible to track cases within
each component but not to align and merge cases from the two
components. Because the U.S. Attorneys' Offices may assist the
Environment and Natural Resources Division in certain case activities,
a single case may appear in both systems, each with a different unique
identifier. The only piece of data in both databases that can in
practice be used to identify cases managed by both components is the
court number, yet neither system has adopted the standard court number
format used in the federal judiciary's Public Access to Court
Electronic Records system, an electronic service that allows public
access to case and docket information from federal appellate,
district, and bankruptcy courts. According to an official of the
Executive Office for U.S. Attorneys, the individual U.S. Attorneys'
Offices may enter the court numbers in the specific formats used by
the courts in their individual jurisdictions, although the official
also said that there is no formal or written guidance for proper
format of court numbers. Without such standard identifying numbers, it
is difficult to identify a full and unduplicated list of environmental
litigation cases and to derive descriptive statistics on costs,
statute, or opposing parties. Because the department's data on
environmental litigation cannot be reliably merged or aggregated to
provide summary information on environmental cases, we had to use an
iterative electronic and manual process to compile data from the two
systems to conduct our review and identify the full set of
environmental litigation cases and associated costs.
Moreover, not only are the two Justice databases separate, but the two
agency components do not collect the same types of data on
environmental cases. Specifically, the U.S. Attorneys' database does
not collect data on the number of hours attorneys spend on an
individual case or information on the statute under which a case is
filed. As a result, it is impossible to gather complete data on all
environmental litigation cases and costs from these databases. For
example, we were unable to calculate the total number of hours that
Justice attorneys worked on environmental cases--and hence, total
costs of attorney time--because the U.S. Attorneys' time is not
tracked by case.
By employing an iterative electronic and manual process to standardize
the court numbers associated with all cases and matching cases from
the two systems by these numbers, we were ultimately able to merge the
two sets of data on environmental litigation cases managed by
Justice's Environment and Natural Resources Division and the U.S.
Attorneys' Offices for purposes of this report. Justice officials
said, however, that they do not plan to change their approach to
managing the data because they use the data in each system to manage
individual cases, not to identify and summarize agencywide data on
cases or trends. Officials said that their systems were designed for
internal management purposes and not agencywide statistical tracking.
Furthermore, while funds are spent to maintain the systems, officials
indicated that the systems are old, and adding data fields or
otherwise making changes to the systems may be technically infeasible
or too costly. Justice officials said that the department previously
sought to develop and implement a single case management system to
gather common data agencywide, but the project was terminated in 2010
after a 2009 Office of the Inspector General report found that the
project was more than 2 years behind the initial estimated completion
date and that the project's total cost would be more than $18 million
over budget. Because the two Justice components are not regularly
required to merge and report their data in a systematic way, we are
not making a recommendation regarding these data or systems.
On Average, Treasury Paid Successful Plaintiffs:
$1.8 Million Annually from the Judgment Fund over the Last 8 Years,
and EPA Paid about $280,000 a Year over the Last 5 Years:
In addition to Justice's costs of defending EPA, costs of litigation
include payment of attorney fees and court costs to plaintiffs who
prevail in lawsuits against EPA. As part of the payment process,
Justice negotiated payment amounts with prevailing parties before
finalizing the amount to be paid. For most of the claims under the 10
environmental statutes in this report, payments to successful
plaintiffs were made from Treasury's Judgment Fund. Justice defended
approximately 2,500 EPA-related cases filed from fiscal year 1995
through fiscal year 2010, but the number of environmental litigation
cases from which plaintiffs received payments was small, representing
about 8 percent of all cases.[Footnote 29] In addition, EPA made a
small number of payments for attorney fees and costs under the
appropriate provision of EAJA.
Treasury's Judgment Fund Payments:
From fiscal year 2003--the first year for which Treasury's Judgment
Fund data are available--through fiscal year 2010, Treasury made, on
average, 26 payments totaling $1.8 million per year for EPA-related
environmental cases. The average Judgment Fund payment was $68,600 per
payment. Treasury paid a total of about $14.2 million out of its
Judgment Fund to prevailing plaintiffs for attorney fees and costs
related to these cases (see figure 4). The largest share of monies (46
percent) were made in cases filed by national environmental groups,
followed by monies paid for cases filed by local environmental and
citizens' groups (29 percent). The payments ranged from as little as
$145, to the administrator of a law school clinic for a Clean Air Act
suit, to as much as $720,000, to a private law firm for a Clean Water
Act suit. According to Justice officials, payments are made either to
the plaintiff or to the plaintiff's attorneys. Appendix III lists
payments from Treasury's Judgment Fund for the environmental statutes
in our review.
Figure 4: Treasury's Judgment Fund Payments, Fiscal Year 2003 through
Fiscal Year 2010:
[Refer to PDF for image: stacked vertical bar graph]
Fiscal year: 2003;
Trade associations: $377,923;
Private companies: $0;
National environmental groups: $1.3 million;
Local environmental and citizens' groups: $267,120;
Individuals: $178;
State, municipal, and regional governments: 162;688;
Tribes, universities, unions, and workers' groups: $0;
Other: $0.
Fiscal year: 2004;
Trade associations: $0;
Private companies: $0;
National environmental groups: $28,0997;
Local environmental and citizens' groups: $1.3 million;
Individuals: $0;
State, municipal, and regional governments: $0;
Tribes, universities, unions, and workers' groups: $0;
Other: $0.
Fiscal year: 2005;
Trade associations: $0;
Private companies: $1,075;
National environmental groups: $1.2 million;
Local environmental and citizens' groups: $374,543;
Individuals: $34,787;
State, municipal, and regional governments: $0;
Tribes, universities, unions, and workers' groups: $0;
Other: $0.
Fiscal year: 2006;
Trade associations: $48,776;
Private companies: $0;
National environmental groups: $400,074;
Local environmental and citizens' groups: $805,247;
Individuals: $0;
State, municipal, and regional governments: $2,976;
Tribes, universities, unions, and workers' groups: $0;
Other: $0;
Unknown: $11,923.
Fiscal year: 2007;
Trade associations: $0;
Private companies: $158,859;
National environmental groups: $477,108;
Local environmental and citizens' groups: $496,257;
Individuals: $0;
State, municipal, and regional governments: $114,498;
Tribes, universities, unions, and workers' groups: $0;
Other: $0.
Fiscal year: 2008;
Trade associations: $0;
Private companies: $0;
National environmental groups: $448,678;
Local environmental and citizens' groups: $55,196;
Individuals: $0;
State, municipal, and regional governments: $214,643;
Tribes, universities, unions, and workers' groups: $0;
Other: $0.
Fiscal year: 2009;
Trade associations: $0;
Private companies: $0;
National environmental groups: $2.0 million;
Local environmental and citizens' groups: $35,1241;
Individuals: $0;
State, municipal, and regional governments: $1.1 million;
Tribes, universities, unions, and workers' groups: $214,847;
Other: $0.
Fiscal year: 2010;
Trade associations: $595,000;
Private companies: $20,971;
National environmental groups: $374,441;
Local environmental and citizens' groups: $463,032;
Individuals: $0;
State, municipal, and regional governments: $496,476;
Tribes, universities, unions, and workers' groups: $0;
Other: $33,000.
Source: GAO analysis of Treasury data.
Note: We omitted Superfund cases because we could not determine
whether Treasury's Judgment Fund payments were for attorney fees and
court costs or for reimbursements of site cleanups, which are not
within the scope of our work.
[End of figure]
Fluctuations in annual payments may occur, according to Justice
officials, because payments to plaintiffs can be made several years
after a case is completed, in part because Justice attempts to
negotiate settlements of attorney fee claims before seeking a
determination by the courts regarding claims that cannot be settled.
Officials said that through this process of negotiation, the
department pays plaintiffs, in the majority of cases, an amount that
is much lower than requested. To determine attorney fees for each
case, Justice considers, among other things, documentation by the
plaintiff, including such factors as (1) the number of hours the
plaintiff's attorneys spent on the case, which must be documented by
the plaintiff; (2) the job description of the person spending time on
the case (e.g., the costs for a paralegal and a lead counsel would be
very different); (3) the specific tasks performed; and (4) applicable
law in the jurisdiction, such as limits on hourly attorney fees or
total amounts that courts have approved in the past.[Footnote 30]
Although Justice may conclude that the hours are justified, fees may
still be denied because of court precedent. Each time fees are
negotiated, depending on the amount, Justice's Assistant Attorney
General or the relevant Environment and Natural Resources Division
Section Chief must approve the result, pursuant to applicable
regulations and delegations.
EPA Payments:
From fiscal year 2006--the first year for which EPA specifically
tracked the payments by type of claim--through fiscal year 2010, EPA
made 14 payments, totaling $1.4 million, for attorney fees and other
costs under EAJA. EPA made an average of 2.8 payments per fiscal year,
with an average payment of about $100,000. On average, EPA paid about
$280,000 per year. The largest share of the monies (61 percent) went
to payments for claims filed by local environmental groups, followed
by monies (23 percent) for claims filed by national environmental
groups. Although workers' groups filed comparatively few lawsuits, one
such group did receive a single payment of $230,000 in fiscal year
2010 (see figure 5).
Figure 5: Amount Paid by EPA under EAJA for Environmental Cases,
Fiscal Year 2006 through Fiscal Year 2010:
[Refer to PDF for image: stacked vertical bar graph]
Fiscal year: 2006;
Local Environmental Groups: $157,401;
National Environmental Groups: $0;
Individuals: $0;
Workers' Groups: $0.
Fiscal year: 2007;
Local Environmental Groups: $0;
National Environmental Groups: $0;
Individuals: $0;
Workers' Groups: $0.
Fiscal year: 2008;
Local Environmental Groups: $69,221;
National Environmental Groups: $128,713;
Individuals: $0;
Workers' Groups: $0.
Fiscal year: 2009;
Local Environmental Groups: $623,135;
National Environmental Groups: $171,896;
Individuals: $0;
Workers' Groups: $0.
Fiscal year: 2010;
Local Environmental Groups: $0;
National Environmental Groups: $18,000;
Individuals: $1,179;
Workers' Groups: $230,000;
Source: GAO analysis of Treasury data.
Note: EPA made payments in calendar year 2007 but not in fiscal year
2007.
[End of figure]
The EPA payments ranged from $1,179, which was paid to an individual
for a Clean Water Act suit in 2010, to $472,967, which was paid to an
environmental group for two Clean Water Act suits, including one
appeal. Appendix III contains a list of payments by payee.
Agency Comments and Our Evaluation:
We provided a draft of this report to EPA, Justice, and Treasury for
their review and comment. EPA did not provide comments, and Justice
and Treasury had technical comments, which we incorporated as
appropriate.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to the
appropriate congressional committees, the Attorney General of the
United States, the Secretary of the Treasury, the Administrator of
EPA, and other interested parties. In addition, the report will be
available at no charge on the GAO Web site at [hyperlink,
http://www.gao.gov].
If you or your staff members have any questions about this report,
please contact me at (202) 512-3841 or trimbled@gao.gov. Contact
points for our Offices of Congressional Relations and Public Affairs
may be found on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix IV.
Signed by:
David C. Trimble:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
This report describes (1) trends, if any, in environmental lawsuits
against the Environmental Protection Agency (EPA) from fiscal year
1995 through fiscal year 2010, as well as stakeholders' views of
factors affecting any trends, and (2) Justice's recent costs for
representing EPA in defensive environmental lawsuits and the federal
government's recent payments to plaintiffs.
To examine the changes over time to EPA's environmental litigation
caseload, we obtained and analyzed data on lawsuits filed against the
agency from databases maintained by two components within the
Department of Justice--the Case Management System database maintained
by Justice's Environment and Natural Resources Division and the Legal
Information Office Network System database maintained by Justice's
U.S. Attorneys' Offices. We obtained and analyzed data from these
databases for lawsuits:
* filed in federal court from fiscal year 1995 through fiscal year
2010 (Oct. 1, 1994, through Sept. 30, 2010);
* in which EPA was the lead defendant, excluding cases in which EPA
was a defendant but the lead defendant identified by Justice was
another agency, such as the U.S. Army Corps of Engineers;
* brought under 10 major environmental statutes implemented by or
applying to EPA, including the Clean Air Act; Clean Water Act; Safe
Drinking Water Act; Resource Conservation and Recovery Act;
Comprehensive Environmental Response, Compensation, and Liability Act
(Superfund); Emergency Planning and Community Right-to-Know Act;
Federal Insecticide, Fungicide, and Rodenticide Act; Federal Food,
Drug, and Cosmetic Act; Toxic Substances Control Act; and the
Endangered Species Act as it applies to EPA.
We excluded cases filed under the National Environmental Policy Act
(NEPA) because these cases are managed by a number of sections within
the Environment and Natural Resources Division, and because, according
to Justice officials, few cases are filed under NEPA with EPA as the
lead defendant. We also excluded the Freedom of Information Act,
Discrimination in Federal Employment Act, Fair Labor Standards Act,
and other generally applicable laws because the intent was to focus on
challenges to EPA's core work in implementing environmental laws.
Likewise, we excluded bankruptcy cases and cases heard in state court
unless they were moved to federal court.
To determine if the data were reliable for our purposes, we checked
them for completeness and legitimate values. When we were uncertain of
the data's accuracy, we requested clarification from the source of the
data. Within each database, we checked for duplicate records and
either combined data across records into one record or removed
unnecessary records. To compile a list of all cases of EPA lawsuits,
we needed to identify duplicate cases across the two databases.
Because the common field in the two systems--court number--is not kept
in the same format, it was necessary for us to standardize court
numbers into one format. To do so, we used the standard court number
format used in the federal judiciary's Public Access to Court
Electronic Records (PACER) system, an electronic public-access service
that allows users to obtain case and docket information from federal
appellate, district, and bankruptcy courts. After electronically
processing reports of matched and unmatched cases, we conducted
extensive manual review of the data to (1) confirm that matched cases
from the two databases were in fact the same and (2) identify cases
that were the same but were still not found with the electronic
process. Manual checks of selected individual court cases were
performed using the PACER system to correct information, such as EPA's
role in the case, the names of plaintiffs, and court numbers.
We analyzed selected data elements--such as plaintiffs' names, filing
and disposition dates, and relevant statute--over time to identify any
trends in litigation. We also used the data on plaintiffs to identify
categories of plaintiffs that have filed suit against EPA. To do this
analysis, we used a process known as content analysis, searching
national databases for information on each plaintiff and then using
this information to code the plaintiffs according to rules developed
by our internal team of analysts and specialists in program evaluation
methods. Our team created 13 categories into which plaintiffs were
coded (see table 3).
Table 3: Categories of Plaintiffs:
Plaintiff type: Trade association;
Description: Represents numerous individual member for-profit
companies and businesses.
Plaintiff type: Private company;
Description: Privately owned business.
Plaintiff type: Workers' group or labor union;
Description: Represents workers' interests; differs from associations.
Plaintiff type: State or territory;
Description: State attorneys general, state environmental agencies,
and other state government departments or agencies, including U.S.
territories or their government offices.
Plaintiff type: Municipal and regional government entity;
Description: Cities, counties, and towns, as well as local or regional
public water authorities, among others.
Plaintiff type: Tribe;
Description: Any Native American tribe or tribal organization.
Plaintiff type: National environmental group;
Description: Environmental groups or associations working at the
national level--often with one or more local offices or branches. For
our purposes, "environment" meant a focus on conservation and
improvement of any aspect of the outdoor environment, such as air or
water quality and protection of natural resources.
Plaintiff type: Local environmental group;
Description: A group without a national parent group that works at the
local and regional level.
Plaintiff type: Citizens' group;
Description: Civic and social associations, as well as community
groups, with an interest in citizen protection, health, or justice
issues that are not identified as specifically focused on
"environmental" issues.
Plaintiff type: Individual;
Description: A private citizen not affiliated with any formal
organization.
Plaintiff type: University;
Description: Any group named as a college or university.
Plaintiff type: Other;
Description: Any other plaintiffs that do not fit into the categories
listed above.
Plaintiff type: Unknown;
Description: A limited number of plaintiffs for which we were unable
to find information, perhaps because those groups no longer existed or
had changed their names.
Source: GAO.
[End of table]
We evaluated the reliability of our plaintiff categories using two
pretests on simple random samples of 40 and 41 plaintiffs,
respectively. A minimum of five analysts independently coded the
samples to ensure they had a common understanding of the categories
and made the same coding decisions. For each pretest, we estimated the
analysts' agreement rates adjusted for the possibility of agreement by
chance. These "kappa" statistics estimate the reliability of each
category. In the first pretest, the analysts agreed 74 percent of the
time across all categories and 71 to 91 percent of the time for the
individual categories other than "unknown," using the combined
category of "local environmental and citizens' groups." On the basis
of the results of the first pretest, we refined the definitions of the
categories and conducted the second pretest. In the subsequent
pretest, the analysts agreed 87 percent of the time across all
categories and 84 to 95 percent of the time for the individual
categories other than "unknown" and "other." These agreement rates
suggested that the analysts could reliably classify the plaintiffs
according to common standards in academic literature on intercoder
agreement. Classifying the plaintiffs helped us quantify the number of
cases brought each year against EPA by different types of groups.
After validating the categories, we searched in public databases of
organizations for information that would allow us to classify each
plaintiff. We used the Nexis Encyclopedia of Associations and the
Nexis Company Profile data systems, both of which identify
organizations by North American Industry Classification System and
Standard Industrial Classification. To the extent possible, we used
these codes to classify plaintiffs. If these sources were not
sufficient, we searched the Web pages of each organization for self-
reported information. For the "individual" category of plaintiff, we
confirmed through court records that those people were in fact suing
as private individuals and not, for example, as mayors or attorneys
general of a state. In some cases, insufficient information was
available in Justice's databases to determine a given plaintiff's
identity. In such cases, we looked up the case in the PACER system.
Six analysts conducted the content analysis of plaintiffs in the Case
Management System and the Legal Information Office Network System.
Discrepancies in coding were discussed, and agreement was reached
among the analysts or resolved through a group analyst review.
To obtain stakeholder perspectives on environmental litigation trends
and the factors that underlie them, we interviewed officials from EPA
and Justice; representatives from the offices of five state attorneys
general and one state environment department; representatives from six
environmental groups; and six industry trade associations. We also
spoke with a representative of the National Association of Attorneys
General. Additionally, we interviewed one academic expert who has
published extensively on environmental litigation in legal journals
(see table 4). We selected these representatives on the basis of input
from government officials and other interviewees. We asked the
interviewees for their perspectives about factors that can affect
trends in the types of lawsuits against EPA. We then performed a
content analysis to group and summarize their responses. Not all
stakeholders provided views on all issues, and statements from our
sample of stakeholders cannot be generalized to all groups.
Table 4: Stakeholders We Interviewed:
Environmental groups:
Center for Biological Diversity;
Chesapeake Bay Foundation;
Earthjustice;
Environmental Integrity Project;
Natural Resources Defense Council;
Sierra Club.
Trade associations:
American Chemistry Council;
American Forest and Paper Association;
American Petroleum Institute;
National Association of Homebuilders;
National Association of Manufacturers;
Utility Air Regulatory Group.
State officials:
California Attorney General's Office;
Massachusetts Attorney General's Office;
New York Attorney General's Office;
Ohio Attorney General's Office;
Texas Commission on Environmental Quality;
Virginia Attorney General's Office.
Other:
National Association of Attorneys General;
Widener University School of Law.
Source: GAO.
[End of table]
To determine Justice's costs for representing EPA in defensive
environmental lawsuits and the government's payments to plaintiffs, we
obtained data on three components of costs: (1) Justice's costs for
its attorneys' time defending EPA, (2) payments for attorney and other
costs from the Department of the Treasury's Judgment Fund for some
cases that the government lost, and (3) payments for attorney and
other costs by EPA for some cases that the government lost. For the
first component, we obtained data from Justice on the number of cases
per year that involved any of the 10 statutes in our scope, as well as
the number of hours Justice attorneys spent working on these cases. To
calculate costs, we multiplied the total hours worked in a given year
by that year's average hourly pay rate--ranging from $41 to $66 per
attorney for fiscal years 1998 through 2010--which we received from
Justice. To adjust for uncompensated overtime, we reduced the reported
annual hours the attorneys worked by 15 percent, an amount that
Justice estimated represents overtime worked by its attorneys. To
adjust the attorneys' salaries to include benefits and related agency
overhead, we increased the attorneys' salaries by 84.3 percent, a
factor that was provided to us by Justice on the basis of its actual
2009 costs. To ensure that attorney costs are comparable across years,
we adjusted annual pay rates by applying the consumer price index for
all urban consumers from the Department of Labor, Bureau of Labor
Statistics, and inflated all pay rates to constant 2010 dollars. When
we reported single payments, however, we did not adjust these figures
to constant dollar figures.
To determine the second and third components of litigation costs--
Treasury's Judgment Fund and EPA's payments to plaintiffs--we obtained
and analyzed data from Treasury and EPA. First, we obtained and
analyzed data from the Department of the Treasury's Judgment Fund
Internet Claims System, which tracks the progress of plaintiffs'
claims for Judgment Fund payments from the time they are sent to
Treasury until the time they are paid. To identify data on payments
related to the environmental statutes in our scope, we matched
Treasury's data with data from Justice's two databases and eliminated
payments that did not correspond with cases in our scope. When
information was determined to be missing, we asked Treasury to provide
us with additional information. In particular, we learned that
Treasury's data included payments that were issued but were not cashed
or were returned; we worked with Treasury to remove these payments to
avoid counting these as actual payments and overrepresenting the
amount paid from the Judgment Fund. We deleted Superfund cases because
we were unable to discern from available information whether the
Superfund-related payments were for attorney fees and court costs or
for reimbursements of site cleanups, which is a different category of
payment than what is within our scope. Similarly, to identify EPA
payments to plaintiffs within our scope under the Equal Access to
Justice Act, we obtained EPA data on payments made to plaintiffs and
manually matched these cases with the cases in Justice's two
databases. When certain case information was determined to be missing,
we did additional research on these cases using PACER and corrected
the data. Inconsistent formatting of key data elements produced
significant problems for completing our analysis and required
significant manual review by us and Justice. If we did not find the
necessary information from available sources, we asked EPA to send us
relevant portions of the internal voucher packages used to request
payment.
We conducted this performance audit from June 2010 through July 2011,
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Key Provisions and Historical Reporting under the Equal
Access to Justice Act:
In the United States, parties involved in litigation generally bear
their own attorney fees and costs. For policy reasons, including
encouraging citizens to bring suits to enforce the law, Congress has
provided exceptions to this rule for cases brought under several
statutes, such as the Civil Rights Act. In these instances, as well as
some common-law exceptions, a prevailing plaintiff may seek awards of
its attorney fees and court costs from the losing party.
Historically, the federal government had sovereign immunity from some
of these exceptions, but in some instances, the statutes also waived
sovereign immunity so that a court could award fees and costs against
the federal government, as well as a private party. According to
Justice, many of the key environmental statutes' provisions
authorizing award of attorney fees and costs apply to the federal
government. For example, EPA pays attorney fees under several
provisions of the Clean Air Act and the Clean Water Act.[Footnote 31]
Furthermore, in 1980, the Equal Access to Justice Act (EAJA) was
enacted to waive sovereign immunity for the remaining statutes
authorizing award of fees and costs, as well as to authorize the
awarding of fees and costs in other cases. As the 1980 conference
committee report for EAJA explains, the act's premise is that
individuals, corporations, partnerships, and labor and other
organizations did not seek review of or defend against unreasonable
government actions because of the expense involved, which was
compounded by the disparity in expertise and resources between the
government and the individual or organization involved. EAJA was
intended to help certain individuals, partnerships, corporations, and
labor and other organizations by paying the attorney fees and other
costs if the federal government brought an administrative or judicial
action and lost because the action was not substantially justified.
EAJA seeks to (1) encourage parties that are the subject of
unreasonable federal government action to seek reimbursement for
attorney fees and other costs, (2) restrain overzealous regulators,
and (3) ensure that the government pays for the cost of refining and
formulating public policy.[Footnote 32]
EAJA authorizes the award of the following:
* Court costs of prevailing parties against the United States in any
civil action. These costs may include fees for the clerk and marshal,
reporter, printing, witnesses, copies, docket fees, and interpreters
and court-appointed experts and may include an amount equal to the
filing fees.
* Attorney fees and expenses against the United States of a prevailing
party to the same extent as any other party, codified at 28 U.S.C. §
2412(b) and hereinafter referred to as "subsection b." That is, where
there is a statutory or common-law exception that provides for award
of fees to a prevailing party, such exceptions also apply to the
federal government.[Footnote 33] Regarding the 10 environmental
statutes covered in this report, many of the relevant provisions under
which EPA may be sued provide for award of such fees.[Footnote 34]
However, EAJA makes EPA subject to fee awards under all the
environmental statutes' provisions authorizing courts to award
attorney fees and expenses. According to Justice, many of the
environmental suits against EPA involve provisions that authorize fee
awards independent of EAJA, but a small number may fall into EAJA
subsection b. A feature of this subsection is that it does not itself
limit the eligibility of prevailing plaintiffs, nor expressly limit
the hourly rate of attorney fees; however, the statute requires that
the fees be "reasonable." Additionally, any award of fees made under
this section is subject to any limitations that would apply to
analogous awards against private parties, as may be provided by the
underlying statute.
* Attorney fees and expenses of a prevailing party in cases even when
no statutory or common-law exception exists to make a private
defendant liable for such fees, unless the court finds that the
position of the United States was substantially justified or that
special circumstances make an award unjust. This subsection of EAJA,
codified at 28 U.S.C. § 2412(d) and hereinafter referred to as
"subsection d," authorized the award of these fees against the federal
government in civil court actions,[Footnote 35] while another
subsection authorized the award of these fees in certain agency
adjudications such as when a party files an appeal of an agency
decision to the EPA Environmental Appeals Board. Two of the 10 laws
covered in this report--the Federal Insecticide, Fungicide, and
Rodenticide Act and the Federal Food, Drug, and Cosmetic Act--as well
as some individual provisions of other statutes, do not authorize
payment of fees to prevailing parties. Cases brought against EPA under
these statutes and provisions, then, fall into EAJA subsection d. This
subsection limits the prevailing plaintiff's eligibility to receive
payment by defining an eligible party as, at the time the lawsuit is
filed, either an individual with a net worth below $2 million or a
business owner or any partnership, corporation, association, local
government, or organization with a net worth below $7 million and
fewer than 500 employees. Tax-exempt nonprofit organizations and
certain agricultural marketing cooperatives are considered parties
regardless of net worth.
Payment of attorney fees by federal agencies under statutes
independently authorizing awards against federal agencies and under
subsection b are made from the Judgment Fund, which is a permanent,
indefinite appropriation available to pay many money judgments against
the United States.[Footnote 36] Payment of attorney fees by federal
agencies under subsection d is generally made from agency
appropriations. Table 5 summarizes key attributes of the three
authorizing situations under which EPA may pay fees and costs.
Table 5: Key Attributes of Attorney Fee Payment Provisions Relevant to
Judicial Proceedings:
Authorizing statute: Various provisions of some environmental statutes;
Applicability: [Empty];
Limitations: Varies;
Reporting requirement: No;
Funding for payments: Judgment Fund.
Authorizing statute: EAJA subsection b;
Applicability: Where statute or common law provides for award of fees
against private party;
Limitations: No (any limitations in the statute(s) allowing fees to be
awarded apply);
Reporting requirement: No;
Funding for payments: Judgment Fund.
Authorizing statute: EAJA subsection d[A];
Applicability: Where there is no requirement for payment of fees to
private parties in law;
Limitations: Yes (hourly rates of attorney fees are limited and
restrictions on plaintiffs eligibility for fees);
Reporting requirement: Yes (repealed);
Funding for payments: Agency appropriations.
Source: GAO.
[A] A separate section of EAJA, codified at 5 U.S.C. § 504, provides
for similar payments in agency adjudications.
[End of table]
Originally, EAJA provided for governmentwide reporting on its use and
cost. For judicial proceedings, EAJA required the Director of the
Administrative Office of the U.S. Courts to report annually to
Congress on EAJA court activity, including the number, nature, and
amounts of awards; claims involved; and any other relevant information
deemed necessary to aid Congress in evaluating the scope and effect of
awards under the act. The responsibility for this reporting was
transferred to the Attorney General in 1992. In addition, EAJA
required the Chairman of the Administrative Conference of the United
States to submit an EAJA report annually to Congress on
administratively awarded fees and expenses. Then, in December 1995,
the Federal Reports Elimination and Sunset Act of 1995 repealed the
Attorney General's reporting requirement for fees and expenses awarded
under EAJA and also discontinued reporting of governmentwide
administrative awards of fees and costs under EAJA after fiscal year
1994. Currently, there are no statutory requirements in effect for
agency or governmentwide reporting of payments made under EAJA for
either administrative or judicial proceedings. According to officials
from the Administrative Conference of the United States, the
conference has begun to obtain and compile such information for fiscal
year 2010, noting that there has been continued interest in Congress
(including pending legislation) regarding data about payments under
EAJA. Officials told us the conference has requested EAJA data from 50
government agency conference members, as well as a few additional
agencies that had previously reported EAJA activity to the conference.
The chairman plans to publish a report for fiscal year 2010 later in
2011.
We have previously reported certain governmentwide EAJA data, as well
as data focused on selected agencies. In 1996, we reported data on the
number of cases and amounts of awarded plaintiff attorneys' fees
exceeding $10,000 against nine federal agencies for cases closed
during fiscal years 1993 and 1994.[Footnote 37] In 1998, we provided
information on the history of EAJA, the extent to which one provision
of the act was used governmentwide from 1982 to1994, and the
provision's use by the Department of Labor and associated agencies.
[Footnote 38] The governmentwide data showed, among other things, that
the Departments of Health and Human Services and of Veterans Affairs
accounted for most EAJA payments in court proceedings, under the
provision that applies when the substantive law does not authorize
award of attorney fees and costs.[Footnote 39]
[End of section]
Appendix III: Department of the Treasury and Environmental Protection
Agency Payments:
This appendix provides data on payments for attorney fees and court
costs made by the Department of the Treasury for fiscal year 2003
through fiscal year 2010 and by the Environmental Protection Agency
(EPA) for fiscal year 2006 through fiscal year 2010. Payments for
attorney fees and expenses and court costs may be made to a plaintiff
or directly to a plaintiff's attorney. In cases involving multiple
plaintiffs, one or more plaintiffs or their attorneys may receive
payment. The first plaintiff named in the case title does not
necessarily receive the payment. Table 6 shows payments from the
Judgment Fund.
Table 6: Treasury's Judgment Fund Payments, Fiscal Year 2003 through
Fiscal Year 2010:
Date sent: 9/29/2010;
Case title: Louisiana Environmental Action Network v. Jackson;
Payee(s): Administrators of the Tulane Educational Fund;
Payment: amount[A]: $5,000.00;
Statute: Clean Air Act.
Date sent: 9/27/2010;
Case title: Sierra Club v. EPA;
Payee(s): McGillivray Westerberg;
Payment: amount[A]: $3,223.38;
Statute: Clean Air Act.
Date sent: 9/22/2010;
Case title: Heal the Bay Inc. v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $17,051.00;
Statute: Clean Water Act.
Date sent: 9/21/2010;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $350.00;
Statute: Clean Air Act.
Date sent: 8/19/2010;
Case title: National Pork Producers Council and American Farm Bureau
v. EPA;
Payee(s): Waterkeeper Alliance;
Payment: amount[A]: $25,447.53;
Statute: Clean Water Act.
Date sent: 8/19/2010;
Case title: National Pork Producers Council and American Farm Bureau
v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $69,552.47;
Statute: Clean Water Act.
Date sent: 8/17/2010;
Case title: Sierra Club v. Jackson;
Payee(s): IOLTA Law Office of Robert Ukeiley, PSC[B];
Payment: amount[A]: $8,000.00;
Statute: Clean Air Act.
Date sent: 8/3/2010;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $11,019.57;
Statute: Clean Air Act.
Date sent: 7/14/2010;
Case title: Sierra Club v. EPA;
Payee(s): McGillivray Westerberg;
Payment: amount[A]: $2,624.71;
Statute: Clean Air Act.
Date sent: 7/13/2010;
Case title: Northwest Environmental Defense Center et al. v. U.S.
Environmental Protection Agency et al.;
Payee(s): Pacific Environmental Advocacy Center Attorney Escrow
Account/IOLTA;
Payment: amount[A]: $40,000.00;
Statute: Endangered Species Act.
Date sent: 7/8/2010;
Case title: Environmental Integrity Project v. Jackson;
Payee(s): Vermont Law School Inc.;
Payment: amount[A]: $8,000.00;
Statute: Clean Air Act.
Date sent: 6/25/2010;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $198,700.00;
Statute: Clean Air Act.
Date sent: 6/22/2010;
Case title: Florida Wildlife Federation v. EPA;
Payee(s): Earthjustice Florida;
Payment: amount[A]: $198,997.00;
Statute: Clean Water Act.
Date sent: 6/11/2010;
Case title: WildEarth Guardians v. EPA;
Payee(s): IOLTA Law Office of Robert Ukeiley, PSC;
Payment: amount[A]: $16,000.00;
Statute: Clean Air Act.
Date sent: 5/25/2010;
Case title: The National Cotton Council of America v. EPA;
Payee(s): Western Environmental Law Center;
Payment: amount[A]: $500,000.00;
Statute: Clean Water Act.
Date sent: 5/24/2010;
Case title: State of New Jersey v. EPA;
Payee(s): Clean Air Act Task Force;
Payment: amount[A]: $400,000.00;
Statute: Clean Air Act.
Date sent: 3/12/2009;
Case title: State of New Jersey v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $2,710.96;
Statute: Clean Air Act.
Date sent: 5/19/2010;
Case title: State of New York v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $95,000.00;
Statute: Clean Air Act.
Date sent: 11/16/2009;
Case title: State of New York v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $1,476.21;
Statute: Clean Air Act.
Date sent: 4/28/2010;
Case title: WildEarth Guardians v. EPA;
Payee(s): WildEarth Guardians;
Payment: amount[A]: $3,520.00;
Statute: Clean Air Act.
Date sent: 4/28/2010;
Case title: Comite Civico Del Valle Inc. v. Jackson;
Payee(s): Law Office of Gideon Kracov;
Payment: amount[A]: $33,000.00;
Statute: Clean Air Act.
Date sent: 4/28/2010;
Case title: Association of Irritated Residents v. EPA;
Payee(s): Center on Race, Poverty, and the Environment;
Payment: amount[A]: $16,500.00;
Statute: Clean Air Act.
Date sent: 3/23/2010;
Case title: WildEarth Guardians v. EPA;
Payee(s): WildEarth Guardians;
Payment: amount[A]: $4,588.50;
Statute: Clean Air Act.
Date sent: 3/22/2010;
Case title: WildEarth Guardians v. Jackson;
Payee(s): Robert Ukeiley, PSC IOLTA;
Payment: amount[A]: $22,420.00;
Statute: Clean Air Act.
Date sent: 3/10/2010;
Case title: Mossville Environmental Action Now v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $8,000.00;
Statute: Clean Air Act.
Date sent: 3/4/2010;
Case title: WildEarth Guardians v. Jackson;
Payee(s): Earthjustice;
Payment: amount[A]: $16,000.00;
Statute: Clean Air Act.
Date sent: 3/3/2010;
Case title: Desert Rock and Dine Power Authority v. EPA;
Payee(s): Ater Wynne, LLP IOLTA and Oregon Law Foundation;
Payment: amount[A]: $20,971.12;
Statute: Clean Air Act.
Date sent: 3/3/2010;
Case title: Sierra Club v. EPA;
Payee(s): Tom Neltner;
Payment: amount[A]: $65,489.00;
Statute: Toxic Substances Control Act.
Date sent: 3/3/2010;
Case title: New York Coalition to End Lead Poisoning v. EPA;
Payee(s): Northern Manhattan Improvement Corporation;
Payment: amount[A]: $62,393.00;
Statute: Toxic Substances Control Act.
Date sent: 2/25/2010;
Case title: Environmental Integrity Project v. Jackson;
Payee(s): Environmental Integrity Project;
Payment: amount[A]: $6,312.83;
Statute: Clean Air Act.
Date sent: 2/24/2010;
Case title: Sierra Club v. Jackson;
Payee(s): McGillivray Westerberg;
Payment: amount[A]: $2,847.64;
Statute: Clean Air Act.
Date sent: 1/27/2010;
Case title: Sierra Club v. Jackson;
Payee(s): Robert Ukeiley, PSC IOLTA;
Payment: amount[A]: $4,000.00;
Statute: Clean Air Act.
Date sent: 1/14/2010;
Case title: Florida Clean Water Act Network v. EPA;
Payee(s): Law Office of David A. Ludder PLLC;
Payment: amount[A]: $13,634.50;
Statute: Clean Water Act.
Date sent: 12/17/2009;
Case title: Sierra Club v. Johnson;
Payee(s): McGillivray Westerberg;
Payment: amount[A]: $4,901.26;
Statute: Clean Air Act.
Date sent: 12/8/2009;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $3,314.48;
Statute: Clean Air Act.
Date sent: 11/24/2009;
Case title: Colorado Citizens Against Toxic Waste v. EPA;
Payee(s): Colorado Lawyer Trust;
Payment: amount[A]: $27,427.50;
Statute: Clean Air Act.
Date sent: 11/16/2009;
Case title: Association of Irritated Residents v. EPA;
Payee(s): Center on Race, Poverty, and the Environment;
Payment: amount[A]: $11,500.00;
Statute: Clean Air Act.
Date sent: 11/13/2009;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $1,150.00;
Statute: Clean Air Act.
Date sent: 10/30/2009;
Case title: Sierra Club v. Stephen Johnson;
Payee(s): Sierra Club;
Payment: amount[A]: $21,311.00;
Statute: Clean Air Act.
Date sent: 10/8/2009;
Case title: Sierra Club v. EPA;
Payee(s): Reed Zars;
Payment: amount[A]: $31,140.00;
Statute: Clean Air Act.
Date sent: 10/5/2009;
Case title: Sierra Club v. EPA;
Payee(s): McGillivray Westerberg;
Payment: amount[A]: $2,057.54;
Statute: Clean Air Act.
Date sent: 9/28/2009;
Case title: American Farm Bureau Federation v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $209,867.00;
Statute: Clean Air Act.
Date sent: 9/22/2009;
Case title: American Farm Bureau Federation v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $1,360.44;
Statute: Clean Air Act.
Date sent: 9/24/2009;
Case title: Center for Biological Diversity v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $22,500.00;
Statute: Clean Air Act.
Date sent: 9/22/2009;
Case title: WildEarth Guardians v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $4,884.00;
Statute: Clean Air Act.
Date sent: 8/6/2009;
Case title: Environmental Integrity Project v. EPA;
Payee(s): Earthjustice Main Account;
Payment: amount[A]: $67,587.80;
Statute: Clean Air Act.
Date sent: 8/5/2009;
Case title: Sierra Club v. Johnson;
Payee(s): Sierra Club;
Payment: amount[A]: $5,000.00;
Statute: Toxic Substances Control Act.
Date sent: 6/23/2009;
Case title: Sierra Club v. EPA;
Payee(s): McGillivray Westerberg;
Payment: amount[A]: $2,787.06;
Statute: Clean Air Act.
Date sent: 6/16/2009;
Case title: Friends of Pinto Creek v. EPA;
Payee(s): Western Mining Action;
Payment: amount[A]: $162,347.91;
Statute: Clean Water Act.
Date sent: 6/12/2009;
Case title: State of North Carolina v. EPA;
Payee(s): Minnesota Power;
Payment: amount[A]: $100,000.00;
Statute: Clean Air Act.
Date sent: 6/11/2009;
Case title: Environmental Integrity Project v. EPA;
Payee(s): Environmental Integrity Project;
Payment: amount[A]: $4,500.00;
Statute: Clean Air Act.
Date sent: 5/11/2009;
Case title: Environmental Integrity Project v. EPA;
Payee(s): Environmental Integrity Project;
Payment: amount[A]: $4,500.00;
Statute: Clean Air Act.
Date sent: 5/4/2009;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $163,500.00;
Statute: Clean Air Act.
Date sent: 5/1/2009;
Case title: Rocky Mountain Clean Air Action v. Johnson;
Payee(s): John M. Barth;
Payment: amount[A]: $8,526.02;
Statute: Clean Air Act.
Date sent: 4/2/2009;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): New York State Department of Law;
Payment: amount[A]: $144.90;
Statute: Clean Water Act.
Date sent: 3/25/2009;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Patterson Belknap Webb & Tyler, LLP;
Payment: amount[A]: $800.40;
Statute: Clean Water Act.
Date sent: 3/24/2009;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Patterson Belknap Webb & Tyler, LLP;
Payment: amount[A]: $720,000.00;
Statute: Clean Water Act.
Date sent: 3/17/2009;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $117,125.00;
Statute: Clean Water Act.
Date sent: 1/5/2009;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $628.70;
Statute: Clean Water Act.
Date sent: 2/17/2009;
Case title: Northwest Environmental Advocates v. EPA;
Payee(s): Northwest Environmental Advocates;
Payment: amount[A]: $60,000.00;
Statute: Clean Water Act.
Date sent: 2/10/2009;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): Commonwealth of Massachusetts;
Payment: amount[A]: $127,555.00;
Statute: Clean Air Act.
Date sent: 1/23/2009;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): Sierra Club;
Payment: amount[A]: $93,205.00;
Statute: Clean Air Act.
Date sent: 1/12/2009;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): Lisa Heinzerling;
Payment: amount[A]: $100,000.00;
Statute: Clean Air Act.
Date sent: 12/15/2008;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): State of California Air Resources Board;
Payment: amount[A]: $111,277.00;
Statute: Clean Air Act.
Date sent: 12/15/2008;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): International Center for Technology Assessment;
Payment: amount[A]: $81,438.00;
Statute: Clean Air Act.
Date sent: 12/15/2008;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): City of New York;
Payment: amount[A]: $28,841.00;
Statute: Clean Air Act.
Date sent: 12/12/2008;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): Michael C. MacCracken;
Payment: amount[A]: $11,045.00;
Statute: Clean Air Act.
Date sent: 12/12/2008;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $54,002.00;
Statute: Clean Air Act.
Date sent: 12/12/2008;
Case title: Commonwealth of Massachusetts v. EPA;
Payee(s): Earthjustice Main Account;
Payment: amount[A]: $92,637.00;
Statute: Clean Air Act.
Date sent: 2/5/2009;
Case title: Communities for a Better Environment v. EPA;
Payee(s): IOLTA Law Office of Robert Ukeiley, PSC;
Payment: amount[A]: $65,000.00;
Statute: Clean Air Act.
Date sent: 2/2/2009;
Case title: Natural Resources Defense Council v. Johnson;
Payee(s): Los Angeles County Flood Control District;
Payment: amount[A]: $201,000.00;
Statute: Clean Water Act.
Date sent: 1/14/2009;
Case title: Natural Resources Defense Council v. Johnson;
Payee(s): National Association of Clean Water Agencies;
Payment: amount[A]: $95,000.00;
Statute: Clean Water Act.
Date sent: 1/14/2009;
Case title: Natural Resources Defense Council v. Johnson;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $498,000.00;
Statute: Clean Water Act.
Date sent: 1/5/2009;
Case title: Association of Irritated Residents v. EPA;
Payee(s): Center on Race, Poverty, and the Environment;
Payment: amount[A]: $33,815.00;
Statute: Clean Air Act.
Date sent: 12/31/2008;
Case title: Association of Irritated Residents v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $10,751.00;
Statute: Clean Air Act.
Date sent: 12/29/2008;
Case title: South Coast Air Quality Management District v. EPA;
Payee(s): Earthjustice Main Account;
Payment: amount[A]: $240,000.00;
Statute: Clean Air Act.
Date sent: 8/1/2008;
Case title: Sierra Club v. EPA;
Payee(s): Garvey McNeil & McGillivray;
Payment: amount[A]: $7,250.00;
Statute: Clean Air Act.
Date sent: 5/22/2008;
Case title: Rocky Mountain Clean Air Action v. EPA;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $25,000.00;
Statute: Clean Air Act.
Date sent: 5/13/2008;
Case title: Sierra Club V. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $110,000.00;
Statute: Clean Air Act.
Date sent: 5/1/2008;
Case title: Rocky Mountain Clean Air Action v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $5,283.28;
Statute: Clean Air Act.
Date sent: 3/20/2008;
Case title: Sierra Club v. EPA;
Payee(s): A.G. Edwards and Sons;
Payment: amount[A]: $7,843.00;
Statute: Clean Air Act.
Date sent: 2/26/2008;
Case title: State of New York v. EPA;
Payee(s): Earthjustice Inc.;
Payment: amount[A]: $198,000.00;
Statute: Clean Air Act.
Date sent: 9/14/2006;
Case title: State of New York v. EPA;
Payee(s): Earthjustice Legal Services;
Payment: amount[A]: $2,745.44;
Statute: Clean Air Act.
Date sent: 2/22/2008;
Case title: Center for Biological Diversity v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $55,145.00;
Statute: Clean Air Act.
Date sent: 2/22/2008;
Case title: Sierra Club v. EPA;
Payee(s): Garvey McNeil & McGillivray;
Payment: amount[A]: $6,500.00;
Statute: Clean Air Act.
Date sent: 2/22/2008;
Case title: Environmental Defense Inc. v. EPA;
Payee(s): Sierra Club;
Payment: amount[A]: $945.69;
Statute: Clean Air Act.
Date sent: 2/11/2008;
Case title: Public Employees for Environmental Responsibility v.
Johnson;
Payee(s): Public Employees for Environmental Responsibility;
Payment: amount[A]: $40,000.00;
Statute: Toxic Substances Control Act.
Date sent: 12/5/2007;
Case title: Sierra Club v. EPA;
Payee(s): Sierra Club;
Payment: amount[A]: $3,454.66;
Statute: Clean Air Act.
Date sent: 12/4/2007;
Case title: Sierra Club v. EPA;
Payee(s): Account for Reed Zars;
Payment: amount[A]: $14,360.00;
Statute: Clean Air Act.
Date sent: 12/4/2007;
Case title: Our Children's Earth Foundation v. EPA;
Payee(s): Golden Gate University School of Law;
Payment: amount[A]: $18,000.00;
Statute: Clean Air Act.
Date sent: 11/29/2007;
Case title: South Coast Air Quality Management District v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $2,353.62;
Statute: Clean Air Act.
Date sent: 11/27/2007;
Case title: Sierra Club v. Johnson;
Payee(s): McNeil & McGillivray, S.C. IOLTA;
Payment: amount[A]: $4,898.00;
Statute: Clean Air Act.
Date sent: 11/27/2007;
Case title: State of New Jersey v. EPA;
Payee(s): New Jersey Department of Environmental Protection;
Payment: amount[A]: $3,700.00;
Statute: Clean Air Act.
Date sent: 11/27/2007;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $2,077.17;
Statute: Clean Air Act.
Date sent: 10/26/2007;
Case title: American Lung Association of Metropolitan Chicago v. EPA;
Payee(s): Environmental Law and Policy Center;
Payment: amount[A]: $3,075.00;
Statute: Clean Air Act.
Date sent: 10/25/2007;
Case title: People for the State of Illinois v. EPA;
Payee(s): State of Illinois;
Payment: amount[A]: $7,621.00;
Statute: Clean Air Act.
Date sent: 10/25/2007;
Case title: Citizens Against Ruining the Environment v. EPA;
Payee(s): Chicago Legal Clinic;
Payment: amount[A]: $3,075.00;
Statute: Clean Air Act.
Date sent: 10/18/2007;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Attorney Client Trust Fund;
Payment: amount[A]: $190,000.00;
Statute: Clean Air Act.
Date sent: 9/27/2007;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $4,472.74;
Statute: Clean Air Act.
Date sent: 9/1/2007;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Attorney Client Trust Account;
Payment: amount[A]: $1,630.18;
Statute: Clean Air Act.
Date sent: 8/22/2007;
Case title: Rocky Mountain Clean Air Act Action v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $9,536.00;
Statute: Clean Air Act.
Date sent: 8/21/2007;
Case title: Safe Air for Everyone v. EPA;
Payee(s): Earthjustice Main Account;
Payment: amount[A]: $133,512.05;
Statute: Clean Air Act.
Date sent: 8/20/2007;
Case title: Safe Air for Everyone v. EPA;
Payee(s): Earthjustice Main Account;
Payment: amount[A]: $974.30;
Statute: Clean Air Act.
Date sent: 8/13/2007;
Case title: Sierra Club v. EPA;
Payee(s): Sierra Club;
Payment: amount[A]: $25,000.00;
Statute: Toxic Substances Control Act.
Date sent: 8/8/2007;
Case title: Baykeeper v. EPA;
Payee(s): Environmental Advocates Attorney Client Trust Account/IOLTA;
Payment: amount[A]: $125,000.00;
Statute: Clean Water Act.
Date sent: 7/19/2007;
Case title: Idaho Conservation League v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $4,945.00;
Statute: Clean Air Act.
Date sent: 6/23/2007;
Case title: Coralations v. EPA;
Payee(s): Mid-Atlantic Environmental Law Center;
Payment: amount[A]: $95,388.40;
Statute: Clean Water Act.
Date sent: 5/22/2007;
Case title: Sierra Club and Coosa River Basin Initiative v. EPA;
Payee(s): Georgia Center for Law and the Public Interest;
Payment: amount[A]: $12,000.00;
Statute: Clean Air Act.
Date sent: 5/4/2007;
Case title: Honeywell International Inc. v. EPA;
Payee(s): Gomar National Industries;
Payment: amount[A]: $150,000.00;
Statute: Clean Air Act.
Date sent: 11/26/2004;
Case title: Honeywell International Inc. v. EPA;
Payee(s): Sidley Austin Brown & Wood LLP;
Payment: amount[A]: $956.74;
Statute: Clean Air Act.
Date sent: 4/24/2007;
Case title: State of New York v. EPA;
Payee(s): Mid-Atlantic Environmental Law Center;
Payment: amount[A]: $5,000.00;
Statute: Clean Air Act.
Date sent: 3/10/2007;
Case title: State of New York v. EPA;
Payee(s): Earthjustice Legal Services Trust;
Payment: amount[A]: $2,374.80;
Statute: Clean Air Act.
Date sent: 12/7/2006;
Case title: State of New York v. EPA;
Payee(s): Earthjustice Legal Services Trust;
Payment: amount[A]: $98,837.65;
Statute: Clean Air Act.
Date sent: 4/13/2007;
Case title: Center for Biological Diversity v. Christie Whitman et al.;
Payee(s): Michael W. Graf;
Payment: amount[A]: $405,000.00;
Statute: Endangered Species Act.
Date sent: 2/28/2007;
Case title: Elmwood Park et al. v. Stephen Johnson et al.;
Payee(s): Rutgers Environmental Law Clinic;
Payment: amount[A]: $1,900.00;
Statute: Clean Air Act.
Date sent: 1/17/2007;
Case title: American Canoe Association Inc. v. EPA;
Payee(s): John M. Simpson;
Payment: amount[A]: $2,398.00;
Statute: Clean Water Act.
Date sent: 11/20/2006;
Case title: Medical Advocates for Healthy Air v. EPA;
Payee(s): Earthjustice Main;
Payment: amount[A]: $83,134.11;
Statute: Clean Air Act.
Date sent: 11/15/2006;
Case title: Kentuckians for the Commonwealth v. EPA;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $16,092.00;
Statute: Clean Air Act.
Date sent: 9/6/2006;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Legal Services;
Payment: amount[A]: $67,550.00;
Statute: Clean Air Act.
Date sent: 8/30/2006;
Case title: South Jersey Environmental v. Stephen Johnson, EPA;
Payee(s): Eastern Environmental Law Center;
Payment: amount[A]: $1,871.00;
Statute: Clean Air Act.
Date sent: 7/31/2006;
Case title: Louisiana Environmental Action Network v. Johnson;
Payee(s): Administrators of the Tulane Educational Fund;
Payment: amount[A]: $1,306.50;
Statute: Clean Air Act.
Date sent: 7/12/2006;
Case title: Environmental Integrity Project v. EPA;
Payee(s): Earthjustice Legal Services;
Payment: amount[A]: $93,000.00;
Statute: Clean Air Act.
Date sent: 3/30/2006;
Case title: Environmental Integrity Project v. EPA;
Payee(s): Earthjustice Attorney Client Trust Account;
Payment: amount[A]: $1,732.21;
Statute: Clean Air Act.
Date sent: 6/20/2006;
Case title: Washington Toxics Coalition et. al. v. EPA;
Payee(s): Earthjustice Attorney Client Trust Account;
Payment: amount[A]: $625,602.40;
Statute: Endangered Species Act.
Date sent: 5/26/2006;
Case title: South Jersey Environmental Justice Alliance v. Johnson;
Payee(s): Eastern Environmental Law Center;
Payment: amount[A]: $5,502.00;
Statute: Clean Air Act.
Date sent: 5/4/2006;
Case title: Sierra Club v. Johnson;
Payee(s): Robert Ukeiley, PSC;
Payment: amount[A]: $6,800.00;
Statute: Clean Air Act.
Date sent: 4/26/2006;
Case title: Our Children's Earth Foundation v. EPA;
Payee(s): Our Children's Earth Legal Fund;
Payment: amount[A]: $14,123.34;
Statute: Clean Air Act.
Date sent: 4/21/2006;
Case title: Sierra Club v. EPA;
Payee(s): FBO Georgia Center for Law in the Public Interest;
Payment: amount[A]: $45,000.00;
Statute: Clean Air Act.
Date sent: 4/19/2006;
Case title: Natural Resources Defense Council v. EPA;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $140,000.00;
Statute: Endangered Species Act.
Date sent: 3/23/2006;
Case title: Sierra Club V. EPA;
Payee(s): Sierra Club;
Payment: amount[A]: $3,036.66;
Statute: Clean Air Act.
Date sent: 10/27/2005;
Case title: Mossville Environmental Action Now v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $94,500.00;
Statute: Clean Air Act.
Date sent: 10/25/2005;
Case title: Sierra Club v. Johnson;
Payee(s): Sierra Club;
Payment: amount[A]: $11,981.86;
Statute: Clean Air Act.
Date sent: 10/25/2005;
Case title: Blue Skies Alliance v. Leavitt;
Payee(s): Marc Chytillo;
Payment: amount[A]: $45,000.00;
Statute: Clean Air Act.
Date sent: 10/7/2005;
Case title: Sailors Inc. and Mississippi River Revival v. EPA;
Payee(s): Jerry L. Anderson;
Payment: amount[A]: $11,000.00;
Statute: Clean Water Act.
Date sent: 9/19/2005;
Case title: Environmental Defense v. Johnson;
Payee(s): Southern Environmental Law Center;
Payment: amount[A]: $31,000.00;
Statute: Clean Air Act.
Date sent: 9/19/2005;
Case title: Sierra Club v. Leavitt;
Payee(s): Earthjustice;
Payment: amount[A]: $32,923.38;
Statute: Clean Air Act.
Date sent: 9/8/2005;
Case title: National Wildlife Federation v. EPA;
Payee(s): National Wildlife Federation;
Payment: amount[A]: $62,128.00;
Statute: Clean Air Act.
Date sent: 9/1/2005;
Case title: Center for Biological Diversity et al. v. Environmental
Protection Agency;
Payee(s): Save Our Springs Alliance;
Payment: amount[A]: $53,000.00;
Statute: Endangered Species Act.
Date sent: 8/17/2005;
Case title: Waterkeeper Alliance v. EPA;
Payee(s): Waterkeeper Alliance Inc.;
Payment: amount[A]: $415,145.00;
Statute: Clean Water Act.
Date sent: 6/29/2005;
Case title: Waterkeeper Alliance v. EPA;
Payee(s): Crowell & Moring Master;
Payment: amount[A]: $220,141.34;
Statute: Clean Water Act.
Date sent: 7/26/2005;
Case title: Martha Vigil v. EPA;
Payee(s): Arizona Center for Law in the Public Interest;
Payment: amount[A]: $30,957.75;
Statute: Clean Air Act.
Date sent: 7/14/2005;
Case title: American Lung Association of Metropolitan Chicago v. EPA;
Payee(s): Sierra Club;
Payment: amount[A]: $3,570.00;
Statute: Clean Air Act.
Date sent: 7/13/2005;
Case title: American Lung Association of Metropolitan Chicago v. EPA;
Payee(s): Environmental Law and Policy Center;
Payment: amount[A]: $24,585.00;
Statute: Clean Air Act.
Date sent: 6/22/2005;
Case title: American Lung Association of Metropolitan Chicago v. EPA;
Payee(s): Chicago Legal Clinic Inc. Clients' Fund;
Payment: amount[A]: $18,480.00;
Statute: Clean Air Act.
Date sent: 6/9/2005;
Case title: American Lung Association V. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $18,214.00;
Statute: Clean Air Act.
Date sent: 2/26/2004;
Case title: American Lung Association V. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $23,000.00;
Statute: Clean Air Act.
Date sent: 6/9/2005;
Case title: American Lung Association v. Whitman;
Payee(s): Earthjustice;
Payment: amount[A]: $6,650.00;
Statute: Clean Air Act.
Date sent: 12/30/2003;
Case title: American Lung Association v. Whitman;
Payee(s): Earthjustice;
Payment: amount[A]: $78,500.00;
Statute: Clean Air Act.
Date sent: 5/12/2005;
Case title: Bluewater Network v. EPA;
Payee(s): Earthjustice Attorney Client Trust Account;
Payment: amount[A]: $45,406.21;
Statute: Clean Air Act.
Date sent: 4/28/2005;
Case title: Sierra Club v. Whitman;
Payee(s): Earthjustice;
Payment: amount[A]: $11,800.00;
Statute: Clean Air Act.
Date sent: 4/7/2005;
Case title: Glynn Environmental Coalition Inc. v. EPA;
Payee(s): Legal Environmental Assistance Foundation;
Payment: amount[A]: $7,908.64;
Statute: Clean Air Act.
Date sent: 3/30/2005;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $53,920.80;
Statute: Clean Air Act.
Date sent: 6/17/2004;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $1,347.96;
Statute: Clean Air Act.
Date sent: 3/25/2005;
Case title: New York Public Interest Research Group v. Whitman;
Payee(s): Morningside Heights Legal Services;
Payment: amount[A]: $35,000.00;
Statute: Clean Air Act.
Date sent: 3/25/2005;
Case title: Environmental Defense v. Horinko;
Payee(s): Earthjustice;
Payment: amount[A]: $22,276.00;
Statute: Clean Air Act.
Date sent: 2/20/2005;
Case title: Louisiana Environmental Action Network v. Leavitt;
Payee(s): The Administrators of the Tulane Educational Fund;
Payment: amount[A]: $1,641.50;
Statute: Clean Air Act.
Date sent: 1/25/2005;
Case title: Missouri Coalition for the Environment v. Leavitt;
Payee(s): Missouri Coalition for the Environment;
Payment: amount[A]: $88,198.79;
Statute: Clean Water Act.
Date sent: 12/29/2004;
Case title: Environmental Defense v. EPA;
Payee(s): Reed Zars;
Payment: amount[A]: $49,430.00;
Statute: Clean Air Act.
Date sent: 12/11/2004;
Case title: Louisiana Environmental Action Network v. EPA;
Payee(s): The Administrators of the Tulane Educational Fund;
Payment: amount[A]: $129,066.99;
Statute: Clean Air Act.
Date sent: 10/27/2004;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $91,000.00;
Statute: Clean Air Act.
Date sent: 11/18/2003;
Case title: [Empty];
Payee(s): Earthjustice;
Payment: amount[A]: $1,006.40;
Statute: Clean Air Act.
Date sent: 9/30/2004;
Case title: Our Children's Earth Foundation v. EPA;
Payee(s): Golden Gate University School of Law;
Payment: amount[A]: $30,000.00;
Statute: Clean Air Act.
Date sent: 9/30/2004;
Case title: Sierra Club v. EPA;
Payee(s): FBO Georgia Center for Law in the Public Interest;
Payment: amount[A]: $31,132.60;
Statute: Clean Air Act.
Date sent: 9/25/2004;
Case title: Our Children's Earth Foundation v. EPA;
Payee(s): Environmental Advocates;
Payment: amount[A]: $70,000.00;
Statute: Clean Water Act.
Date sent: 7/26/2004;
Case title: Environmental Defense Center v. EPA;
Payee(s): Paul Weiss Rifkind Wharton & Garrison;
Payment: amount[A]: $219,000.00;
Statute: Clean Water Act.
Date sent: 7/6/2004;
Case title: Riverkeeper Inc. v. EPA;
Payee(s): Riverkeeper Inc.;
Payment: amount[A]: $98,000.00;
Statute: Clean Water Act.
Date sent: 6/16/2004;
Case title: Environmental Defense Fund and Natural Resources Defense
Council v. EPA;
Payee(s): Robert E. Yuhnke & Associates;
Payment: amount[A]: $27,000.00;
Statute: Clean Air Act.
Date sent: 6/8/2004;
Case title: Sierra Club v. Leavitt;
Payee(s): FBO Georgia Center for Law in the Public Interest;
Payment: amount[A]: $20,000.00;
Statute: Clean Air Act.
Date sent: 5/10/2004;
Case title: Our Children's Earth Foundation v. EPA;
Payee(s): Golden Gate University School of Law;
Payment: amount[A]: $4,500.00;
Statute: Clean Air Act.
Date sent: 4/30/2004;
Case title: Medical Advocates for Healthy Air v. Whitman;
Payee(s): Earthjustice Legal Defense Fund;
Payment: amount[A]: $199,622.98;
Statute: Clean Air Act.
Date sent: 4/12/2004;
Case title: Sierra Club and New York Public Interest Research Group
Inc v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $49,500.00;
Statute: Clean Air Act.
Date sent: 4/6/2004;
Case title: Save the Valley Inc. v. EPA;
Payee(s): Save the Valley Inc.;
Payment: amount[A]: $45,600.64;
Statute: Clean Water Act.
Date sent: 3/24/2004;
Case title: Association of Irritated Residents v. EPA;
Payee(s): Earthjustice Attorney;
Payment: amount[A]: $50,620.00;
Statute: Clean Air Act.
Date sent: 2/17/2004;
Case title: Association of Irritated Residents v. EPA;
Payee(s): California Rural Legal Assistance Foundation;
Payment: amount[A]: $5,320.50;
Statute: Clean Air Act.
Date sent: 3/22/2004;
Case title: Our Children's Earth Foundation and Sierra Club v. EPA;
Payee(s): Reed Zars;
Payment: amount[A]: $155,000.00;
Statute: Clean Air Act.
Date sent: 2/27/2004;
Case title: Defenders of Wildlife et al. v. United States
Environmental Protection Agency;
Payee(s): Belin and Sugarman;
Payment: amount[A]: $26,526.96;
Statute: Endangered Species Act.
Date sent: 2/5/2004;
Case title: Louisiana Environmental Action Network v. EPA;
Payee(s): Administrators of the Tulane Educational Fund;
Payment: amount[A]: $3,200.00;
Statute: Clean Air Act.
Date sent: 2/3/2004;
Case title: Bluewater Network v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $85,542.00;
Statute: Clean Air Act.
Date sent: 12/15/2003;
Case title: International Center for Technology Assessment v. Whitman;
Payee(s): International Center for Technology Assessment;
Payment: amount[A]: $29,000.00;
Statute: Clean Air Act.
Date sent: 11/5/2003;
Case title: Southern Organizing Committee for Economic and Social
Justice v. EPA;
Payee(s): Southern Environmental Law Center;
Payment: amount[A]: $120,000.00;
Statute: Clean Air Act.
Date sent: 8/22/2003;
Case title: Sierra Club v. Whitman;
Payee(s): Georgia Center for Law in the Public Interest;
Payment: amount[A]: $14,464.48;
Statute: Clean Air Act.
Date sent: 7/25/2003;
Case title: Kansas Natural Resource Council Inc. v. Browner;
Payee(s): John M. Simpson PC;
Payment: amount[A]: $38,270.00;
Statute: Clean Water Act.
Date sent: 7/25/2003;
Case title: Kansas Natural Resource Council Inc. v. Browner;
Payee(s): Charles Benjamin Inc.;
Payment: amount[A]: $17,925.00;
Statute: Clean Water Act.
Date sent: 6/30/2003;
Case title: New York Public Interest Research Group v. Whitman;
Payee(s): Earthjustice;
Payment: amount[A]: $15,251.52;
Statute: Clean Air Act.
Date sent: 6/23/2003;
Case title: Sierra Club v Whitman;
Payee(s): Earthjustice;
Payment: amount[A]: $22,490.00;
Statute: Clean Air Act.
Date sent: 6/19/2003;
Case title: Juanita Stewart v. Whitman;
Payee(s): Administrators of the Tulane Educational Fund;
Payment: amount[A]: $150.00;
Statute: Clean Air Act.
Date sent: 6/18/2003;
Case title: New York Public Interest Research Group v. EPA;
Payee(s): New York Public Interest Research Group;
Payment: amount[A]: $3,004.90;
Statute: Clean Air Act.
Date sent: 5/5/2003;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $145,669.00;
Statute: Clean Air Act.
Date sent: 10/17/2002;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice Legal Defense Fund;
Payment: amount[A]: $726.78;
Statute: Clean Air Act.
Date sent: 4/30/2003;
Case title: Sierra Club and Missouri Coalition for the Environment v.
EPA;
Payee(s): Green Hennings & Henry;
Payment: amount[A]: $66,146.38;
Statute: Clean Air Act.
Date sent: 4/30/2003;
Case title: American Corn Growers Association v. EPA;
Payee(s): Western Fuels Association Inc.;
Payment: amount[A]: $22,000.00;
Statute: Clean Air Act.
Date sent: 4/30/2003;
Case title: American Corn Growers Association v. EPA;
Payee(s): Center for Energy and Economic Development;
Payment: amount[A]: $182,000.00;
Statute: Clean Air Act.
Date sent: 4/24/2003;
Case title: Sierra Club v. EPA;
Payee(s): Earthjustice;
Payment: amount[A]: $41,584.00;
Statute: Clean Air Act.
Date sent: 4/21/2003;
Case title: Sierra Club v. EPA;
Payee(s): Marc Chytilo;
Payment: amount[A]: $77,000.00;
Statute: Clean Air Act.
Date sent: 4/2/2003;
Case title: South Coast Air Quality Management District v. EPA;
Payee(s): Los Angeles County Treasurer;
Payment: amount[A]: $102,000.00;
Statute: Clean Air Act.
Date sent: 3/4/2003;
Case title: Communities for a Better Environment v. EPA;
Payee(s): Environmental Law and Justice Clinic;
Payment: amount[A]: $36,491.00;
Statute: Clean Air Act.
Date sent: 1/28/2003;
Case title: Natural Resources Defense Council v. Browner;
Payee(s): Earthjustice;
Payment: amount[A]: $14,909.00;
Statute: Clean Air Act.
Date sent: 12/21/2002;
Case title: Sierra Club and Louisiana Environmental Action Network
Inc. v. Gregg A. Cooke;
Payee(s): Earthjustice Attorney Client Trust Account;
Payment: amount[A]: $496,375.61;
Statute: Clean Water Act.
Date sent: 12/20/2002;
Case title: Mineral County v. EPA;
Payee(s): Western Environmental Law Center;
Payment: amount[A]: $35,000.00;
Statute: Clean Water Act.
Date sent: 12/17/2002;
Case title: American Littoral Society v. EPA;
Payee(s): Mid-Atlantic Environmental Law Center;
Payment: amount[A]: $75,000.00;
Statute: Clean Water Act.
Date sent: 11/13/2002;
Case title: Defend the Bay Inc. v. Marcus;
Payee(s): Natural Resources Defense Council;
Payment: amount[A]: $57,500.00;
Statute: Clean Water Act.
Date sent: 10/30/2002;
Case title: Sierra Club and Group Against Smog and Pollution v. EPA;
Payee(s): Earthjustice Legal Defense Fund;
Payment: amount[A]: $125,000.00;
Statute: Clean Air Act.
Date sent: 10/30/2002;
Case title: American Trucking Associations v. EPA;
Payee(s): Utility Air Resources Group Escrow Account;
Payment: amount[A]: $92,250.00;
Statute: Clean Air Act.
Date sent: 10/8/2002;
Case title: Environmental Defense Fund v. EPA;
Payee(s): Blackburn Carter, PC;
Payment: amount[A]: $51,630.76;
Statute: Clean Air Act.
Date sent: 10/7/2002;
Case title: Midwest Ozone Group v. EPA;
Payee(s): Jackson & Kelley, PLLC;
Payment: amount[A]: $22,000.00;
Statute: Clean Air Act.
Date sent: 10/4/2002;
Case title: Californians for Alternatives for Toxics et al. v.
Environmental Protection Agency;
Payee(s): Brian Gaffney;
Payment: amount[A]: $56,500.00;
Statute: Endangered Species Act.
Source: GAO analysis of Treasury Department data.
[A] Table data have not been adjusted for inflation.
[B] IOLTA stands for "interest on lawyers' trust accounts." According
to IOLTA.org, a lawyer who receives funds that belong to a client,
such as retainers or advance payments, must place those funds in a
trust account separate from the lawyer's own money; these are known as
IOLTA accounts.
[End of table]
In addition to payments from the Judgment Fund, EPA made payments
under EAJA to successful plaintiffs. Table 7 shows payments made by
EPA for fiscal year 2006 through fiscal year 2010.
Table 7: EPA's Equal Access to Justice Act Payments, Fiscal Year 2006
through Fiscal Year 2010:
Payment date: 5/27/2010;
Case title: Richard J. Weisberg v. EPA;
Payee(s): Richard J. Weisberg;
Payment amount[A]: $1,178;
Statute[B]: Clean Water Act.
Payment date: 4/8/2010;
Case title: Center for Biological Diversity v. EPA;
Payee(s): Center for Biological Diversity;
Payment amount[A]: $18,000;
Statute[B]: Clean Water Act.
Payment date: 9/29/2010;
Case title: United Farm Workers of America v. EPA;
Payee(s): United Farm Workers of America;
Payment amount[A]: $230,000;
Statute[B]: Federal Insecticide, Fungicide, and Rodenticide Act.
Payment date: 9/28/2009;
Case title: Northwest Environmental Advocates v. EPA;
Payee(s): Northwest Environmental Advocates[C];
Payment amount[A]: $465,000;
Statute[B]: Clean Water Act.
Payment date: 5/21/2009;
Case title: Kentucky Waterways Alliance v. Leavitt;
Payee(s): Kentucky Waterways Alliance;
Payment amount[A]: $147,638;
Statute[B]: Clean Water Act.
Payment date: 11/19/2008;
Case title: Sierra Club v. EPA;
Payee(s): Sierra Club Environmental Law Program/Mid-Atlantic
Environmental Law Center;
Payment amount[A]: $169,000;
Statute[B]: Clean Water Act.
Payment date: 7/18/2008;
Case title: Klamath Riverkeeper v. EPA;
Payee(s): Klamath Riverkeeper;
Payment amount[A]: $65,459;
Statute[B]: Clean Water Act.
Payment date: 12/11/2007;
Case title: National Wildlife Federation v. EPA;
Payee(s): National Wildlife Federation;
Payment amount[A]: $27,273;
Statute[B]: Clean Water Act.
Payment date: 10/15/2007;
Case title: Friends of the Earth v. EPA;
Payee(s): Friends of the Earth;
Payment amount[A]: $99,660;
Statute[B]: Clean Water Act.
Payment date: 10/12/2007;
Case title: Ohio Valley Environmental Coalition Inc. v. Johnson;
Payee(s): Ohio Valley Environmental Coalition Inc.;
Payment amount[A]: $2,805;
Statute[B]: Clean Water Act.
Payment date: 9/18/2006;
Case title: Iowa Environmental Council et al. v. Steven Johnson et al.;
Payee(s): Iowa Environmental Council;
Payment amount[A]: $8,414;
Statute[B]: Clean Water Act.
Payment date: 7/24/2006;
Case title: West Harlem Environmental Action v. EPA;
Payee(s): West Harlem Environmental Action and National Resources
Defense Council;
Payment amount[A]: $72,000;
Statute[B]: Federal Insecticide, Fungicide, and Rodenticide Act.
Payment date: 4/17/2006;
Case title: St. Johns Riverkeeper and Linda Young v. EPA;
Payee(s): St. Johns Riverkeeper;
Payment amount[A]: $19,801;
Statute[B]: Clean Water Act.
Payment date: 12/14/2005;
Case title: Minnesota Center for Environmental Advocacy v. EPA;
Payee(s): Minnesota Center for Environmental Advocacy;
Payment amount[A]: $45,000;
Statute[B]: Clean Water Act.
Source: GAO analysis of EPA data.
[A] These data have not been adjusted for inflation.
[B] Statute indicates the statute related to the EPA action being
challenged. In some instances, the Administrative Procedure Act,
rather than the statute listed, authorizes the lawsuit.
[C] One payment, the 2009 payment to the Northwest Environmental
Advocates, is associated with two cases.
[End of table]
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
David C. Trimble, (202) 512-3841 or trimbled@gao.gov:
Staff Acknowledgments:
In addition to the individual contact named above, Susan Iott
(Assistant Director), Jacques Arsenault, Elizabeth Beardsley, Jennifer
Beveridge, Colleen Candrl, Ellen W. Chu, Bernice Dawson, Cindy
Gilbert, Cynthia Grant, Anne K. Johnson, Rebecca Makar, Mehrzad Nadji,
and Jeff Tessin made key contributions to this report.
[End of section]
Footnotes:
[1] Some of these laws specifically authorize suits against EPA, while
the Administrative Procedure Act, which is the federal law generally
governing how federal agencies may propose and establish regulations,
authorizes judicial review of certain federal agency actions.
[2] Treasury's Judgment Fund is also used to pay any court judgments
that fall under Judgment Fund authorities. Justice's costs to defend
EPA in Superfund litigation is reimbursed by EPA pursuant to an annual
agreement between the agencies.
[3] GAO, DOJ's Civil Rights Division: Opportunities Exist to Improve
Its Case Management System and Better Meet Its Reporting Needs,
[hyperlink, http://www.gao.gov/products/GAO-09-938R] (Washington,
D.C.: Sept. 30, 2009).
[4] From fiscal year 1993 to fiscal year 1994, the Attorney General
reported annually to Congress on the amount of attorney fees and other
expenses awarded in certain judicial proceedings. See GAO, Private
Attorneys: Selected Attorneys' Fee Awards against Nine Federal
Agencies in 1993 and 1994, [hyperlink,
http://www.gao.gov/products/GAO/GGD-96-18] (Washington, D.C.: Oct. 31,
1995).
[5] Actions that may be challenged in court generally fall into
several categories: rulemakings, permit decisions and other approvals,
enforcement actions, and other actions. In a rulemaking, EPA publishes
a proposed regulation for public review and comment and then issues a
final regulation. Generally, challenges may be brought after EPA has
issued its final rule. In a permit decision, EPA processes an
application according to relevant procedures, which typically provide
for a draft permit and opportunity for the applicant and interested
public to comment before the agency's issuance or denial of a final
permit. Generally, only final permit decisions, including the process
by which a decision was made, may be challenged.
[6] These environmental laws typically also authorize suits against
other federal agencies for violations. For example, a citizen could
file a lawsuit against a federal agency for operating a hazardous
waste facility without a Resource Conservation and Recovery Act permit.
[7] Administrative Procedure Act, 60 Stat. 237 (1946), codified as
amended at 5 U.S.C. § 551 (2011).
[8] Not all EPA actions are subject to legal challenge. For example,
the Safe Drinking Water Act specifically precludes suits challenging
EPA's list of contaminant candidates, a list periodically issued by
EPA enumerating contaminants that may require regulation under the act.
[9] Committee on Public Works, A Legislative History of the Clean Air
Amendments of 1970, at 351 (1974) (remarks of Senator Muskie). The
Clean Air Act's citizen suit provision was the model for similar
provisions in other environmental statutes.
[10] Edward Lloyd, Citizen Suits and Defenses against Them, ALI-ABA
Environmental Litigation (2008). See also Robert Glicksman, The Value
of Agency-Forcing Citizen Suits to Enforce Nondiscretionary Duties, 10
Widener L. Rev. 353 (2004). For a critical view of citizen suits under
the Clean Air Act, see Randy E. Brogdon and Mack McGuffey, Recent
Trends in CAA Citizen Suits: Managing Risk in the Serengeti, 20-WTR
Nat'l Resources & Env't., 17 (2006).
[11] Generally, the environmental statutes' citizen-suit provisions
require a prospective plaintiff to first send EPA a formal notice of
intent to sue. Conversely, neither these statutes' judicial review
provisions nor the Administrative Procedure Act impose a notice
requirement.
[12] In general, a party must first exhaust all available
administrative appeals before initiating a judicial suit.
[13] For example, EPA's Environmental Appeals Board can decide
disputes such as appeals from permit decisions, civil penalty
decisions, and other administrative decisions.
[14] In general, before the Equal Access to Justice Act (EAJA) was
enacted, under the principle of sovereign immunity, the federal
government was not subject to many of these exceptions and therefore
was not authorized to make payments to prevailing parties. According
to Justice, however, the relevant provisions of many key environmental
statutes are applicable to the federal government, and thus the
government is subject to court awards to prevailing parties
independent of EAJA. See, e.g., Clean Air Act, 42 U.S.C. §§ 7604(d),
7607(f) (2011); Clean Water Act, 33 U.S.C. §§ 1365(d), 1369(b)(3)
(2011).
[15] H.R. Conf. Rep. 96-1434, at 20-27 (1980) (Conference committee
report on Pub. L. No. 96-481, The Small Business Export Expansion Act
of 1980, of which Title II is the Equal Access to Justice Act).
[16] According to some in Congress, parties who choose to litigate an
issue against the federal government help refine and formulate public
policy by ensuring the legitimacy and fairness of the law being
contested. Where policy changes are required, some believe that the
costs should be borne by the government.
[17] For example, courts recognize a common-law exception allowing
award of attorney fees to prevailing parties in instances of bad faith.
[18] This provision does not limit the eligibility of prevailing
plaintiffs, and the statute requires that the fees be "reasonable"
rather than impose a specific cap on the hourly rate of attorney fees
for payment purposes. In addition, any fees awarded under this section
are subject to any limitations that would apply to analogous awards
against private parties, which may be provided by an underlying
statute.
[19] EAJA authorizes the award of these fees against the federal
government in both civil court actions, excluding tort cases, such as
personal injury suits, as well as certain agency adjudications.
[20] This section limits the prevailing plaintiff's eligibility to
receive payment by defining an eligible party as, at the time the
lawsuit is filed, either an individual with a net worth below $2
million; or a business owner or any partnership, corporation,
association, local government, or organization with a net worth below
$7 million and fewer than 500 employees. However, tax-exempt nonprofit
organizations and certain agricultural marketing cooperatives are
considered parties regardless of net worth.
[21] Currently, there are no statutory requirements in effect for
agency or governmentwide reporting of payments made under EAJA for
either administrative or judicial proceedings. According to officials
from the Administrative Conference of the United States, the
conference has begun to obtain and compile such information for fiscal
year 2010, noting that there has been continued interest in Congress
(including pending legislation) regarding data on payments under EAJA.
Officials told us the conference has requested EAJA data from 50
government agency conference members, as well as a few additional
agencies that had previously reported EAJA activity to the conference.
The chairman plans to publish a report for fiscal year 2010 later in
2011.
[22] [hyperlink, http://www.gao.gov/products/GAO/GGD-96-18].
[23] GAO, Equal Access to Justice Act: Its Use in Selected Agencies,
GAO/HEHS-98-58R (Washington, D.C.: Jan. 14, 1998).
[24] 28 U.S.C. § 2412(d) (2011).
[25] EPA's "credible evidence" rule, 62 Fed. Reg. 8314 (Feb. 24,
1997), allows any credible evidence to be used in enforcement actions
related to operating permits under Clean Air Act emissions standards.
Trade associations representing various industry groups, including car
manufacturers, lumber companies, steel producers, petroleum companies,
and mining companies challenged the rule in federal court. Twenty-five
petitions were filed in the D.C. Court of Appeals, which consolidated
them. See Clean Air Implementation Project v. Environmental Protection
Agency, 150 F.3d 1200 (D.C. Cir. 1998).
[26] Except where otherwise noted, all figures are in constant 2010
dollars.
[27] We excluded data for fiscal years 1995 through 1997 from our cost
estimate per case because the data for those years include only the
number of cases filed during those years, not the total number of
cases worked on that started in previous years. Including those years
would make costs appear artificially low compared with later years,
which include both new and continuing cases filed from 1995 onward. We
estimated attorneys' costs by using the Justice data and making a
number of adjustments.
[28] If all else remains the same, inclusion of cost such as the U.S.
Attorneys' Offices' costs would increase our estimated costs.
[29] Of the approximately 2,500 cases, about 25 percent remain open in
Justice's databases. Generally, payment of attorney fees and costs is
among the last actions before a case is closed, although in some cases
payments may be made while the case is open. For example, for a
complex case, some parties may settle and receive payment, whereas the
case may continue with other parties for several years. Thus, for the
open cases, there could be associated attorney fees and cost payments
in the future. Among only those cases that are closed in the
databases, approximately 11 percent have a reported payment associated
with them.
[30] For the District of Columbia district court and circuit court,
Justice uses the Laffey matrix as a guide, but for other parts of the
country, Justice consults with local U.S. Attorneys' Offices about
reasonable rates for that area or reviews relevant court decisions on
attorney fee awards in that jurisdiction, since there is no single
template of average rates to pay for attorney fees across the rest of
the nation. The Laffey matrix provides hourly rates for attorneys of
varying experience levels for the District of Columbia.
[31] See, for example, Clean Air Act, 42 U.S.C. §§ 7604(d), 7607(f)
(2011); Clean Water Act, 33 U.S.C. §§ 1365(d), 1369(b)(3) (2011).
[32] According to some in Congress, parties who choose to litigate an
issue against the federal government help refine and formulate public
policy by ensuring the legitimacy and fairness of the law being
contested. Where policy changes are required, some believe that the
costs should be borne by the government.
[33] For example, courts recognize a common-law exception allowing
award of attorney fees in instances of bad faith.
[34] Statutes under which the agency may be sued include, but are not
limited to, the Clean Air Act; Clean Water Act; Comprehensive
Environmental Response, Compensation, and Liability Act (better known
as the Superfund law); Emergency Planning and Community Right-to-Know
Act; Federal Insecticide, Fungicide, and Rodenticide Act and related
provisions of the Federal Food, Drug, and Cosmetic Act; Resource
Conservation and Recovery Act; Safe Drinking Water Act; and Toxic
Substances Control Act. In addition, EPA may be sued to challenge the
agency's compliance with section 7 of the Endangered Species Act.
[35] EAJA authorized the award of these fees against the federal
government in civil court actions, excluding tort cases such as
personal injury suits.
[36] The Judgment Fund is not only the source of funds for these
payments under this section of EAJA, but it is also used for many
other payments stemming from court cases. For example, it is used to
pay any court judgments for money against EPA stemming from an
employment discrimination case or a contract dispute.
[37] GAO, Private Attorneys: Selected Attorneys' Fee Awards against
Nine Federal Agencies in 1993 and 1994, [hyperlink,
http://www.gao.gov/products/GAO/GGD-96-018] (Washington, D.C.: Oct.
31, 1995).
[38] GAO, Equal Access to Justice Act: Its Use in Selected Agencies,
[hyperlink, http://www.gao.gov/products/GAO/HEHS-98-58R] (Washington,
D.C.: Jan. 14, 1998).
[39] 28 U.S.C. § 2412(d).
[End of section]
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